                                     STATE OF VERMONT

                                   ENVIRONMENTAL COURT

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Appeal of Town of Fairfax                     }       Docket No. 45-3-03 Vtec
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                             Decision and Order on Pending Motions
        The Town of Fairfax and Colleen Steen each appealed from a decision of the
Development Review Board (DRB) of the Town of Fairfax, approving Appellee-Applicants=
application for Final Plat Approval for an eleven-lot major subdivision. Appellant Town of Fairfax
was formerly represented by Robert E. Farrar, Esq. and is now represented by Joseph S.
McLean, Esq.; Appellant Colleen Steen was formerly represented by Gary L. Franklin, Esq. and is
now represented by Barbara G. Ripley; Appellee-Applicants Lawrence Young, Sr., Barbara
Young, Steven McDonald and Kathleen (formerly Spacapan) McDonald are represented by
Vincent A. Paradis, Esq. and Daniel P. O=Rourke, Esq.
        Appellant Town has moved for reconsideration of the Court=s decision on summary
judgment. In the alternative, if that motion is denied, the Town moved to amend its statement of
questions to add two issues, and requested an evidentiary hearing and a site visit regarding those
questions.   Appellee-Applicants request attorney=s fees regarding the work expended on
responding to the motion to amend the statement of questions.


Motion for Reconsideration

        Appellant-Town owns property used for its fire station, without frontage on a public
                                                                         [1]                            [2]
street. The fire station has access to Route 104 over a 25-foot-wide           non-exclusive easement
running on land owned by Appellee-Applicants McDonald, from the fire station to Route 104, now
called Goodall Street (a private street). Appellee-Applicants Young also hold an easement over
the same land to Route 104; their easement is 50 feet in width.
        Some of the confusion in this case arises from Appellant-Town=s role in this appeal. The
Town had no standing in its governmental capacity to bring this appeal, as the zoning ordinance
is not at issue in the appeal. Sabourin v. Town of Essex, 146 Vt. 419 (1985). Rather, as the
Court ruled in denying Appellee-Applicants= original motion to dismiss the Town as a party-
appellant, the Town only had standing in its proprietary capacity as an adjoining landowner with
an easement or right to use Goodall Street for access to the fire station.
        The 1987 quitclaim deed of the easement to the Town provided that the Town agreed to
construct a road (Goodall Street) over that easement from Route 104 to the fire house property,
which was to be Adesigned and constructed so as to satisfy all town zoning and planning
                                        [3]
requirements for use as public access         in connection with future development of the other lands
and premises of the [then-grantors, now Appellee-Applicants].@ The 1988 ZBA decision
granting conditional use approval of the fire station required that the Town Ashall have control of
the use of@ the Goodall Street easement, and that Athere shall be no parking on@ the Goodall
Street right-of-way. It provided that the Town should have access to the whole width of the
Goodall Street right of way if it were expanded to a fifty-foot width, and required the Town to erect
warning lights and road signs on Route 104.

        The Court has fully reviewed the facts and legal issues in the summary judgment motion
memoranda, the Court=s decision, and the memoranda on the motion to reconsider, and finds no
reason to reconsider or alter its ruling.
        All that Appellant-Town owned in its proprietary capacity as of the 1988 ZBA decision
was an non-exclusive easement from the fire station property to Route 104, together with the
obligation to construct a road on the easement to serve the fire station and Ato satisfy all town
zoning and planning requirements for use as public access in connection with future
development@ such as Appellee-Applicants= development at issue in the present appeal. All
that the 1988 ZBA decision did with respect to Goodall Street, in authorizing Appellant-Town to
construct the fire station, was to place conditions on the Town=s use of its easement.

        All of the conditions of the 1988 ZBA decision can be read together and harmonized.
The focus of those conditions is to ensure that the emergency equipment has safe access to and
from Route 104. In that respect, Appellant-Town must prohibit parking on the Goodall Street
right-of-way, must erect warning lights and road signs on Route 104, and must be able to control
the use of the easement. That control does not entitle Appellant-Town to prohibit the use of the
easement by others with rights to it. Nothing in the 1988 ZBA decision impairs the property rights
of other owners of the non-exclusive easement or of the land lying under the easement, such as
Appellee-Applicants. Rather, the 1988 ZBA decision allows Appellant-Town to regulate the use
of the easement so that its use by others with rights to its use will not impair the fire department
and other emergency use of the easement. Thus, Appellant-Town could require signs or warning
lights at the entrance onto Goodall Street from the development road, or could require the
widening of Goodall Street to provide additional clearance for emergency traffic. But even if
Appellee-Applicants= predecessors were bound by the unappealed 1988 ZBA decision, Levy v.
Town of St. Albans, 152 Vt. 139 (1989), the 1988 ZBA decision simply does not extend to the
authority Appellant-Town asserts in its motion. Accordingly, the motion for reconsideration is
DENIED.


Motion to Amend
          Alternatively, Appellant-Town has moved to further amend its Statement of Questions to
raise issues regarding the adequacy of Goodall Street to handle the traffic to be generated by the
proposed subdivision.
          Appellant-Town first had ample opportunity to raise issues regarding the adequacy of
Goodall Street to serve the proposed subdivision when this matter was considered by the ZBA.
          Then, in this de novo appeal brought by Appellant-Town in its proprietary capacity, the
Town had ample opportunity to raise issues regarding the adequacy of Goodall Street to serve
the proposed subdivision when it filed its Statement of Questions in early 2003. After the matter
was set for trial on the merits and rescheduled several times at the request of the parties, and
after Cross-Appellant had filed an amended Statement of Questions, in late 2003 Appellant-Town
filed an amended Statement of Questions to add an eighth question regarding whether Appellee-
Applicants= project requires a fifty-foot-wide right-of-way. Appellant-Town had ample opportunity
to raise issues regarding the adequacy of Goodall Street to serve the proposed subdivision when
it filed its amended Statement of Questions, but did not do so.

          Appellee-Applicants moved for summary judgment; Appellant-Town did not file a timely
response, but was given an extra month to file the Town=s response to the summary judgment
motion. During the briefing of the summary judgment motions Appellant-Town had another
opportunity to identify issues or seek to amend its Statement of Questions regarding the
adequacy of Goodall Street to serve the proposed subdivision, but did not do so. After the Court
ruled on summary judgment, concluding almost all the issues in the Statement of Questions, the
parties requested that the trial date already reserved for the hearing of any remaining issues be
postponed again, as they thought they would be resolving the case on the basis of the summary
judgment ruling.
          Appellant-Town=s former attorney asked for an additional two weeks to determine the
Town=s position so that he could consult with the new Selectboard as to the Town=s position, as
it was then shortly before Town Meeting Day. At a telephone conference held on March 30,
2004, Appellant-Town=s former attorney informed the Court and the other parties that the Town
would not be seeking to add any issues to the Statement of Questions, but instead agreed that
the judgment order could issue based on the summary judgment ruling, which it intended to
appeal.
          The following day, Appellant-Town=s new attorney asked the Court=s staff to hold off on
issuing the judgment order until he could consult with the former attorney. After several additional
weeks, punctuated by several additional telephone conferences, Appellant-Town=s new attorney
filed the present motions.


          Although motions to amend a complaint are to be liberally granted, and this Court has
applied the same concept to requests to amend the statement of questions that establishes the
scope of an appeal from a municipal panel, such amendments may only be made when they do
not prejudice the other parties. The purpose of the statement of questions, similarly to that of the
complaint, is to give notice to the other parties and to the Court of the issues to be decided in the
litigation. However, in municipal zoning appeals, the statement of questions also establishes the
scope of the litigation, as the notice of appeal did in Village of Woodstock v. Bahramian, 160 Vt.
417, 424 (1993). The issues now sought to be raised by Appellant-Town were not within the
scope of the appeal.

        Thus, motions to amend pleadings that could have been granted prior to the trial or other
disposition of the case may be equally appropriately denied after the disposition of the case, due
to the increase in prejudice to the other parties from an otherwise-unnecessary second
proceeding on the merits. This is particularly so in the present case, in which Town availed itself
of an opportunity to amend its statement of questions about six months after filing the initial
statement of questions, and did not seek to raise the additional issues at that time; and
participated in briefing the issues raised by summary judgment without seeking to add the
additional issues at that time. Only after the summary judgment motion had been decided in
favor of Appellee-Applicants did Appellant-Town first seek to raise the new issues, and that not
until after the election of a new selectboard. Even V.R.C.P. 60(b)(1) does not protect a party from
tactical decisions which may seem ill-advised in retrospect, or from other free, calculated and
deliberate choices. See, e.g., Riehle v. Tudhope, 171 Vt. 626, 627 (2000) (mem.); Rule v. Tobin,
168 Vt. 166, 174 (1998); Okemo Mountain, Inc. v. Okemo Trailside Condominiums, Inc., 139 Vt.
433, 436 (1981). Under the circumstances of this appeal, the prejudice to Appellee-Applicants in
addressing a new substantive issue at an otherwise-unnecessary trial outweighs the general
policy favoring resolution of issues on their merits.
        Appellee-Applicants= request for attorney=s fees in connection with the motion to amend
the statement of questions is also denied; the motion was not frivolous.
        We will schedule a telephone conference to discuss, among other things, whether the
parties might benefit from mediation at this stage of the proceedings.

                                           th
        Done at Berlin, Vermont, this 13        day of June, 2005.




                                           ____________________________________
                                           Merideth Wright
                                           Environmental Judge



        [1]
          Originally granted in 1987 as fifty feet in width, but revised and accepted by grantee-
Town in 1989 as twenty-five feet in width.
        [2]
             In this document we will use the term Aeasement,@ as the term Aright-of-way@ is
sometimes used colloquially to mean an actual roadway or private street, rather than referring to
the legal right to travel on another=s land.
        [3]
            Any dispute between Appellant-Town in its proprietary capacity and Appellee-
Applicants regarding whether Appellant-Town has satisfied this requirement will have to be
brought in superior court; such a dispute is beyond the jurisdiction of this Court.
