                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT

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In re: Appeals of                    }
 Middlebury College and              }
 KW Middlebury, LLC                  } Docket Nos. 124-7-99 Vtec and 228-11-99 Vtec
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               Decision and Order on Motion for Partial Summary Judgment

        In Docket No. 124-7-99 Vtec, Appellants Middlebury College and Robert Karol and
Dan Wolf, d/b/a KW Middlebury, LLC, (AApplicants@) appealed from all portions of the May
21, 1999 decision of the Planning Commission of the Town of Middlebury ruling on their
application, except the Traffic Impact Criterion analysis (Findings 65 through 81) from
which specifically no appeal was taken.            Simultaneously, Applicants requested the
Planning Commission to reconsider all portions of their application except the same
findings as to the Traffic Impact criterion. A group of interested parties entered their
appearance but did not file a cross-appeal. This case was put on inactive status in the
Environmental Court while the Planning Commission addressed the reconsideration
proceedings.
       In Docket No. 228-11-99 Vtec Applicants appealed from the November 5, 1999
decision of the Planning Commission of the Town of Middlebury ruling on their application,
except the Traffic Impact Criterion analysis (Findings 65 through 81 and related
Conclusions of Law and Order) from which specifically no appeal was taken, and except
that Applicants= appeal of the portion of that decision approving a PUD Master Plan
(Findings 60 through 64 and related Conclusions of Law and Order) was restricted to
Aseeking a ruling that Middlebury College is not bound by such portion unless approval for
Phase I of the master plan is granted as well.@ In this case, the group of interested parties
filed a cross-appeal of the decision, and specifically raised the Traffic Impact criterion in its
Statement of Questions.
       The two appeals were consolidated in this Court.              Appellant-Applicants are


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represented by Jon Anderson, Esq.; Cross-Appellant-Interested Parties are represented by
Gerald R. Tarrant, Esq.; and the Town is represented by Karl Neuse, Esq. Applicants have
moved for partial summary judgment that the Traffic Impact criterion is beyond the scope of
the appeal in Docket No. 228-11-99 Vtec because it was not appealed in Docket No. 124-
7-99 Vtec.
       The following sequence of events is not in dispute. The property at issue in the
application involves a 31-acre parcel of land owned by Middlebury College located
generally between Middle Road and Creek Road and Court Street (U.S. Route 7), of which
KW Middlebury proposes to purchase a 4.1-acre parcel fronting on Court Street/Route 7,
including the former Maple Manor Motel. The overall project consists of a Planned Unit
Development (PUD) consisting of a subdivision of two lots for commercial development on
the parcel to be purchased by KW Middlebury and residential housing in the area to be
retained by Middlebury College. Phase I of the project, involving the development on the
4.1-acre parcel to be purchased by KW Middlebury, is at issue in the appeals now before
the Court.
       An earlier application for Phase I had proposed the razing of the existing Maple
Manor Motel buildings and the subdivision of the 4.1-acre parcel into two lots, one for the
construction of a 40,000-square-foot hotel/conference center and the other for the
construction of a 5,000-square-foot restaurant. During the proceedings leading up to the
May 1999 decision, Applicants withdrew their plans for the restaurant in favor of a 10,000-
square-foot office/apartment building.
       Although the application had initially requested approval of the overall site plan and
the hotel, and conceptual approval for the restaurant, the Planning Commission in the May
1999 decision determined that the submitted plans were insufficiently specific for it to make
findings on all the criteria. The Planning Commission in the May 1999 decision limited its
consideration to the three criteria of Town Plan Compliance, Traffic, and Downtown Impact.
       The May 1999 decision approved the PUD Master Plan with conditions; approved
the Phase I hotel/conference and office/apartment uses with respect to traffic impact;
denied the Phase I hotel/conference and office/apartment buildings and parking lot site
plans on the basis that their scale and form do not conform with the Town Plan; and

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determined that it did not have sufficient evidence to reach a conclusion regarding whether
the Phase I hotel/conference and office uses will or will not have an undue adverse impact
on the economic vitality of the downtown.
       Applicants appealed the May 1999 decision to the Environmental Court and
requested the Planning Commission to reconsider its decision.               In the Motion for
Reconsideration, Applicants sought to limit that reconsideration to all portions of the
decision except the findings and conclusions on the Traffic Impact criterion. Applicants
requested the Planning Commission to reconsider its imposition of conditions on the further
development of the remainder of the Middlebury College land. Applicants also proposed to
Aaddress@ the Planning Commission=s concerns regarding the project=s ability to comply
with the Town Plan, Awith the hope of developing a plan that is acceptable to the Planning
Commission and the Applicants.@ In the Motion for Reconsideration itself, Applicants noted
that they were Aworking on another design variation which the Applicants expect to
complete during July,@ and requested that the Planning Commission consider both that
plan and one completed Aafter March 31, 1999@ which the Planning Commission had
apparently declined to consider in the deliberations leading to its May 1999 decision.
       Applicants sought to preserve the Planning Commission=s favorable decision on the
Traffic Impact criterion, while obtaining reconsideration or appeal of all other issues. In
their appeal of the May 1999 decision to Environmental Court, because no cross-appeal
was filed, Applicants did succeed in excluding the Traffic Impact criterion from
consideration by the Court. That is, to the extent that the Applicants continue to propose to
the Court the plan which was considered by the Planning Commission in the May 1999
decision, as to that plan and that plan only, the Traffic Impact criterion is concluded in favor
of the Applicants.
       However, in their motion for >reconsideration,= by requesting that the Planning
Commission consider plans not previously considered, Applicants in fact asked the
Planning Commission to take two distinct actions: to reopen the proceedings to consider
the new alternative plans, and to reconsider the plan which had been before it when it
made the May 1999 decision.          By asking the Planning Commission to reopen the
proceedings to consider plans not before it when it made the initial ruling on the Traffic

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Impact criterion, Applicants allowed the Planning Commission to determine whether
anything about the new plans would cause it to revise its decision on the Traffic Impact
criterion.
       The Planning Commission voted to reconsider and noticed a public hearing on the
motion for reconsideration. After it determined that it had jurisdiction of the reopened
proceedings, it noticed a public hearing on the reopened issues, including, at the request of
Applicants, additional criteria on downtown impact, aesthetics, and character of the area
affected, which had not been considered in the May 1999 decision. This notice of public
hearing was not provided to the Court, either in the exhibits presented with this motion or in
the exhibits prepared by Applicants for the merits hearing on March 27, 2000; therefore,
the Court cannot determine how the Planning Commission characterized or limited the
reopened proceedings. Hearings were held on September 1, 15 and 22, 1999.
       The Planning Commission=s decision of November 5, 1999, approved the PUD
Master Plan with conditions and provided for future amendments to it; approved the Phase
I lodging/conference and office/apartment uses with respect to traffic impact; denied the
Phase I hotel/conference and office/apartment buildings and parking lot revised site plans
on the basis that their scale and form do not conform with the Town Plan; and approved
the Phase I lodging/conference and office/apartment uses with respect to lack of undue
adverse impact on the economic vitality of the downtown.
       The November 1999 decision stated on its face that it Aamends and replaces the
Commissions May 21, 1999 decision.@ (Emphasis added). Although the findings of fact
and conclusions as to the Traffic Impact criterion in the November 1999 decision were
repeated verbatim from the May 1999 decision, they were made and adopted by the
Planning Commission in a decision on a revised set of plans, and in a decision which
entirely replaced the May 1999 decision. Thus, to the extent that the Applicants wish to
propose to the Court the plans which were considered by the Planning Commission in the
November 1999 decision, or any subsequent revisions to those plans, the Traffic Impact
criterion is before the Court in the appeal.


       Accordingly, based on the foregoing, Appellant-Applicants= Motion for Partial

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Summary Judgment is DENIED, and Summary Judgment is entered in favor of Cross-
Appellant-Interested Parties on the issue raised by the motion for partial summary
judgment: the Planning Commission entirely superseded its May 1999 Decision by its
November 1999 Decision, in which the findings as to the Traffic Impact Criterion were
restated in their entirety. That issue is therefore before this Court by virtue of Cross-
Appellants appeal of the November 1999 Decision, despite the fact that the issue was not
appealed in the May 1999 Decision.

      Done at Barre, Vermont, this 15th day of May, 2000.




                           _________________________________________________
                                Merideth Wright
                                Environmental Judge




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