                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

             Appeals of Madden                  }     Docket Nos. 105-6-04 Vtec
                                                }     (from 4/27/04 ZBA decision)
                                                }
                                                }     119-7-04 Vtec (from 6/3/04
                                                }     Planning Comm. decision)

                  Decision and Order on Pending Motions and Scheduling Order

Appellant John A.G. Madden appealed from several decisions of the Zoning Board of Adjustment
(ZBA) and the Planning Commission of the Town of New Haven, two of which (listed above)
             1
remain open in this Court. Appellant represents himself; Appellee-Applicant State of Vermont
(applying for approval of the use in Docket No. 105-6-04 Vtec and the site plan in Docket No.
119-7-04 Vtec) is represented by William H. Rice, Esq. and Stacy A. Butler Esq.; Appellee-
Applicants Peter Norris, Jr. and Peter Norris, Sr. (applying for the subdivision amendment in
Docket No. 119-7-04 Vtec) are represented by Donald R. Powers, Esq.; and the Town is
represented by James H. Ouimette, Esq. As previously discussed, the above-captioned cases
remain as separate appeals, although they will be scheduled together to the extent possible.

Appellant's requests for the recusal of Judge Wright have been denied by the Chief
Administrative Judge and his request for interlocutory appeal has been denied by the Vermont
Supreme Court. During the pendency of the Judicial Conduct Board's evaluation of a complaint
filed by Mr. Madden, however, Judge Wright suspended making substantive pretrial rulings and
holding evidentiary hearings on the merits of the case. The July 26, 2004 order advised the
parties that, if any motions needed to be ruled on during that period, the parties could request the
Administrative Judge to assign those motions temporarily to another judge. On September 10,
2004, a Motion to Dismiss was filed by the State in both cases. Also on September 10, 2004, a
Motion for Partial Summary Judgment was filed by Appellee-Applicants in Docket No. 119-7-04.
On October 7, 2004, Mr. Madden responded to both motions in a single document. Nothing in
either file reflects any request for reassignment of these motions.

By letter dated November 18, 2004, received at the Court on November 22, 2004, the Judicial
Conduct Board informed Mr. Madden that it had investigated his complaint, that the issues he had
raised did not constitute misconduct, and that his complaint had been dismissed and there would
be no further action taken by the Board. Therefore, as stated in the July 26, 2004 order, Judge
Wright has resumed the management of these cases.

State's Motion to Dismiss

Rather than moving for partial summary judgment to determine whether or to what extent the
Town's authority with respect to the State's application is limited under 24 V.S.A. § 4409, now 24
V.S.A. § 4413, and see In re Appeal of Department of Buildings and General Services, 2003 VT
92 (October 10, 2003)(already supplied to the parties), the State instead has moved to dismiss
both appeals on the basis that Questions 2 and 3 in the Statement of Questions fail to ' state a
claim.' However, although it is rather general, Question 3 is sufficient to raise the issue of the
merits of the applications for approval of the State's project under the applicable regulations;
therefore the State's motion to dismiss is DENIED.

However, in its July 26, 2004 order, the Court noted that issues as to the scope of what is allowed
to be regulated by the Town should be resolved by summary judgment, if possible, in advance of
the hearing. Accordingly, we will plan to rule on the scope of the proceedings at the outset of the
portion of the hearing dealing with the merits of the State's applications for approval of its project.
That hearing is now scheduled for January 13, 2005 (see enclosed notice). Please file any
motions relating to these issues enough in advance of the hearing date so that any responses
will be due so that they are received at the Court and by the other parties on or before January
12, 2005.

Appellee-Applicants' Motion for Partial Summary Judgment

Appellee-Applicants have moved for partial summary judgment in Docket No. 119-7-04 Vtec only.
An earlier application for Appellee-Applicants' subdivision was approved by Judge Katz in Appeal
of Madden, Docket No. 186-11-01 Vtec (Vt. Envtl. Ct., November 22, 2002); that decision was
upheld by the Vermont Supreme Court in its decision in its Docket No. 2003-121 (July 18, 2003).

Appellee-Applicants Norris applied for amendments to the previously-approved subdivision plans,
involving realignment of the access road and curb cut for the subdivision with respect to its
intersection with Route 7, and relocation of the internal subdivision roadway, but not involving any
alteration in the previously-approved lot boundaries. In a February 5, 2004 Planning Commission
decision regarding the subdivision (that was the subject of Docket No. 36-3-04 Vtec (see footnote
1 above)), the Planning Commission approved that amendment application, but had failed to give
proper public notice. In the June 3, 2004 Planning Commission decision that is the subject of
Docket No. 119-7-04 Vtec, the Planning Commission ' reaffirmed' or ratified its February 5, 2004
decision on the amendment application regarding changes to the previously-approved subdivision
with respect to realignment of the access road and curb cut for the subdivision with respect to its
intersection with Route 7, and relocation of the internal subdivision roadway.

To the extent that Appellee-Applicants' motion for partial summary judgment suggests that only
the amendment application is before the Court in the present appeal, it is GRANTED. Only the
merits of the amendment application is before the Court in the present appeal, not the merits of
the original subdivision. However, material facts are in dispute as to the safety of Route 7 at that
intersection, and Appellant is entitled to present evidence as to whether the proposed
amendments to the subdivision access road or internal subdivision roadway have any effect on
the criteria in the Subdivision Regulations regarding the layout and safety of streets serving the
subdivision. To the extent that Appellee-Applicants' motion for partial summary judgment
suggests that no facts are in dispute as to that application, it is DENIED.

Accordingly, the hearing on the merits of both above-captioned cases are scheduled together for
January 13, 2005 at the Mahady Courthouse in Middlebury (see enclosed notice). The hearing on
the merits of the State's applications for approval of its project will begin as soon as all the
evidence has been taken regarding the application for approval of the subdivision amendments.
Any evidence taken on the subdivision amendments that relates to the State's application for
approval of its project need not be repeated. The Court will hear oral argument on any motions
filed with regard to the scope of the State's applications at the conclusion of the evidence on the
subdivision amendments and prior to beginning the hearing on the State's applications for
approval of its project, and expects to rule on any such motions prior to taking any additional
evidence relating to the State's applications for approval of its project.

                                 th
Done at Barre, Vermont, this 29 day of November, 2004.
___________________
Merideth Wright
Environmental Judge




                                             Footnotes

1.
     Based on the Court’s July 26, 2004 order, on August 11, 2004 Question 1 in Docket No. 36-
3-04 was resolved in Mr. Madden’s favor, and Docket No. 36-3-04 Vtec was concluded as
otherwise moot, specifically without prejudice to all parties’ ability to raise in Docket No. 119-7-04
any issues on the merits of the subdivision amendment that they could have raised in Docket No.
36-3-04 Vtec.
