 

State of Vermont
S_uperior Court-Environmental Division MAR 2 9 §sz

ENTRY REGARDING'MOTION SUF§§?¢“Q°¢NSURT

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In re Foregger Revocable Trust 4-Lot Subdivision Docket No. 157-10-11 Vtec
(DRB Zoning/Subdivision)

Title: l\/lotion for Summary ludgment (Piling No. 1)
' Filed: ]anuary 13, 2012
Filed By: Appellees judy Poregger, and Douglas and Robert Foregger, Trustees

Response in Opposition filed 2 / 9 / 12 by Appellants jeffrey L. and Susan L. Arnestoy
Reply filed 2/ 21 / 12 by Appellees ]udy Foregger, and Douglas and Robert Foregger, Trustees

___ Granted ` ___ Denied L Other

]effrey and 'Susan Amestoy (”Neighbors”) appeal a September 15, 2011 decision by the
Town of Waterbury Development Review Board (”the DRB”) approving a zoning permit
application submitted on behalf of the beneficiary and trustees of the Foregger Revocable Trust
(”Appellees”) for a four-lot subdivision on property owned by Appellees and located in the
Medium Density Residential zoning district in Waterbury Center, Vermont. Neighbors contend
that the Town and Village of Waterbury Zoning» Regulations (”the Regulations”) require site
plan review of Appellees’ subdivision application ln reviewing the subdivision application,
the DRB did not engage in site plan review. n

As part of their appeal, Neighbors filed`a Statement of Questions containing two
Questions. The first Question asl<s Whether Appellees' application for a four-lot subdivision
must be subject to site plan review even though Waterbury has not adopted subdivision
regulations The second Question asks whether, if site plan review is required, Appellees'
proposed subdivision falls within any of the Regulations' exceptions to site plan review.
Appellees now move for summary judgment on both Questions, contending that this Court
lacks jurisdiction to address these Questions. 7

The Court can only grant summary judgment if ”the pleadings, depositions, answers to v
interrogatories and admissions on file, together with the affidavits, if any, . . . show that there is
no genuine issue as to any material fact and that any party is entitled to judgment as a matter of
law.” V.R.C.P. 56(c)(3) (2011) (amended ]an. 23, 2012). We will ”accept as true the [factual]
allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material,” and we will give the non-moving party
the benefit of all reasonable doubts and inferences Robertson v. lean `Labs., lnc., 2004 \_/'T 15,
jj 15, 176 vt 356. ' ,

»E>{plicit in the new version of V.R.C.P. 56, Which took effect lanuary 23, 2012, is the
Court's ability to grant summary judgment on grounds not raised by any party. See V.R.C.P.

 

Foregger Rei)ocable Trust 4~L0t Subdz'v, No. 157-10~11 Vtec (EO on Motionfor Summ ])(03~29-2012) Pg. 2 of 4

56(f)(2) (]'an. 23, 2012). We may only do so, however, ”[a]fter giving notice and a reasonable
time to respond.” E.l

g in their motion for summary judgment, Appellees contend that the DRB’s decision does

not address Whether the Regulations require site plan review of Appellees' proposed
subdivision and that, asa result, the DRB issued no ”written decision” on the issue of site plan
review from which Neighbors can appeal, (Appellees’ l\/lot. for Summ. ]. 4, filed ]an. 13, 2012.)
Accordingly, Appellees assert that the Court does not have jurisdiction under 10 V.S.A. § 8504
to consider Neighbors’ Questions concerning site plan'review. Neighbors respond that they
have a right to appeal the DRB’s decision and that the authority of the Court to hear an appeal
is not limited by the language that the DRB chooses to include in its decision

Under 10 V.S.A. § 8504(b), an interested person can appeal an ”act or decision” by a
development review board. This Court has been granted jurisdiction to consider appeals
brought under 10 V.S.A. §_8504(b). See 1 V.S.A. § 34(1). Section 4464(b)(1) of Title 24of the
Vermont Statutes Annotated requires that DRB' decisions be issued in writing and that the
' meeting minutes can suffice as a written decision if they include ”factual bases and conclusions
relating to the review standards."

No party here is contending that l\leighbors have not properly appealed the DRB's
decision or that the DRB's decision, in terms of its analysis under the sections in the Regulations
that it does address, is not a written decision that complies With 24 V.S.A. §4464. lnstead,
Appellees contend that, because the DRB did not refer to site plan review, the DRB’s decision is
not a written decision on that issue, and therefore the Court lacks jurisdiction to consider
whether site plan review is necessary

The DRB is not required to include in its written decision a discussion of the sections of
the Regulations that do not apply to an application before it. By omitting from its decision any
discussion of Section 301 of the Regulations, which regulates site plan review, the DRB
necessarily determined that Appellees’ proposed subdivision did not require site plan approval
before the DRB could grant a Zoning permit Under 1 V. S. A. § 34(1),` We have jurisdiction to
consider Neighbor' s Questions regarding whether the application before the DRB, and before
us on appeal, requires site plan review. See 10 V.S.A. § 8504(h). ln other Words, We do not
agree with Appellees that the lack of reference to site plan review in the DRB’s written decision
prevents us from considering these Questions in the context of Neighbors’ appeal of that
decision We have jurisdiction to consider the Questions on appeal

We are further inclined, for the following reasons, to answer both Questions by
concluding that the Regulations do not require site plan review of Appellees’ subdivision
application

We' interpret the Regulations using the familiar rules of statutory construction l_n re
Appeal of Trahan, 2008 VT 90,1{ 19,184 Vt. 262. That is, we ”construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance ” l__d
Nonetheless, ”[e]ven the very Words used by the legislature in the enactment must yield to a
construction consistent with legislative purpose." Lubinsl<v v. Fair Haven Zoning Bd., 148 Vt.
47, 50 (1986) (citing ln re Preseault 130 Vt. 343, 348 (19’72)); see also, e.g., in re Bennington Sch.l

 

 

1 Although Appellees filed their motion on january 13, 2012, before the new version of V.R.C.P. 56 tool<
effect, We adopt the philosophy and policy of the new version.

2

1301/egger Rei)ocable Trust 4~L'0t Subdz'i), No. 15 7-1 0~11 Vtec (EO on Motz`on for Summ ]) (03-29-2012) Pg. 3 of 4

 

lnc., 2004 VT 6, 11 13, 176 Vt. 584 (”The Court will assume the common and ordinary usage of
language in a statute unless doing so,would render it ineffective, meaningless, or lead to an
irrational result.”).

lt is true that the Regulations require the DRB to ”hear and decide applications for site
plan review as specified in Section 301.” Regulations § 201(c)(3). Except for land within the
v Route 100 District, which the subject land is not, Section 301 only requires site plan review for
”any use . . . before a zoning permit may be issued.” Regulations §-301 (emphasis added). The
Regulations do not define ”use” to include the division of land. See Regulations Art. XII
(defining ”use” as ”[t]he specific purpo'se(s) for which land or structure is or may be, designed,
arranged, intended or occupied”). Moreover, the Vermont Supreme Court has indicated that,
under the statutory scheme established in Title 24 V.S.A., Chapter 117 for land use regulations
”subdivision review is not intended to police prospective uses of the subdivided lots” and that
”the act of subdivision does not restrict those uses " ln re Taft Corners Assoc., lnc., 171 Vt 135,
141 (2000).

lt is apparent that Appellees sought a zoning permit to subdivide their land and did not
request approval of any B of the land. The DRB is empowered to review requests to subdivide
land. Regulations § 201 (c) (1).2 The DRB’s decision granting Appellees a zoning permit
includes a ”[c]onclusion" stating that ”the scope of [the DRB’s] review is limited to Final Plat
review as outlined in [Regulations] Section 401, Dimensional Requirements, and Section 413,
Driveways and Curb Cuts.” Dev. Review Bd. Approved l\/linutes, App. No.- 44-11-T Foregger
Revocable Trust Special Meeting Approved Minutes, at 2 (Town of Waterbury Dev. Review Bd.
Sept. 15, 2011). Because site plan review `is only triggered under Section 301 of the Regulations
for applications regarding the use of land, we are inclined to conclude that site plan approval of
Appellees’ proposed subdivision is unnecessary for Appellees to receive a zoning permit.

 

To the extent that Appellees' subdivision application denotes an intended use of the
property after it is subdivided, such statements are not material to the DRB’s review, or our
review on appeal, of the application The statements indicate only an intention to develop the
property in a certain way at some indeterminate future time. See Taft Corners Assoc., lnc., 171
Vt.135, at 140-41 (finding that statement of future uses proposed in subdivision application did
not limit uses to which property could be put at a later date, and stating that ”there is no
requirement that the subdivider know what uses will be placed on [the subdivided] lots”)
Should Appellees propose a use for the subdivided land in the future, site plan approval may
be required in order for Appellees to engage in that use

Accordingly, the Court believes that summary judgment for Appellees is warranted on
Question 1, not for the reasons stated in Appellees’ motions but rather on the grounds
summarized above Pursuant 'to V.R.C.P. 56(f)(2) (]an. 23, 2012), we offer all parties a
reasonable opportunity to respond to the Court’s proposed determination Accordingly, the
parties have 30 days in Which respond to the Court’s intent to grant summary judgment in
Appellees’ favor on Question 1. Additionally, granting summary judgment on Question 1 will
render a consideration of Question 2 unnecessary

 

2 This provision refers to ”review as specified under Article Xll.” The reference seems erroneous as Art.
XH is the ”Defini`tions” section of the ordinance

Foregger Rei)ocable Trust 4-L0t Subdz'z), No. 15 7-1 0-11 Vte-c (EO on Motion for Summ ]) (03-29-2012) Pg. 4 of 4

//O:;Vi U)% l l\/larch 29, 2012

 

 

 

\)
Thomas G. Wal§ii?]udge Date
Date copies sent: Z>/?/‘z // 2..» Clerl<'s lnitials: }'§

Copies sent to:
Appellants ]effrey L. and Susan L. Amestoy, pro se
Amanda Lafferty and David W. Rugh, Attorneys for lnterested Person Waterbury Center
Christopher ]. Nordle, Attorney for Appellees judy Foregger, and Douglas and Robert Foregger, Trustees

