                                      STATE OF VERMONT

                                   ENVIRONMENTAL COURT

                In re: Appeal of Daniel Trahan     }
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                                                   } Docket No. 148-7-00 Vtec
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               Decision and Order on Appellant= s Motion for Summary Judgment

Appellant Daniel Trahan appealed from a decision of the Planning Commission of the Town of
Colchester denying his application for removal of earth products. Appellant is represented by
Richard A. Spokes, Esq.; the Town is represented by Richard C. Whittlesey, Esq. Appellant has
moved for summary judgment on Questions 1 through 4 of the Statement of Questions.

The following facts are undisputed unless otherwise noted.

Appellant owns a seasonal single family residence on Goodsell Road, a ten-foot-wide private
road, in the low-density residential (R-1) zoning district. A seasonal single family residence is a
permitted use in the R-1 district. Prior to 1998, parking for the dwelling was on the traveled
portion of the private road.

In 1998, Appellant applied for and received two building permits from the Zoning Administrator,
authorizing renovations to the front of the building and to add a second story. Neither application
refers to any removal of earth or excavation, or to the creation of a new driveway or parking
area. In connection with the renovations, Appellant excavated approximately1 100 cubic yards of
earth material from the lot, to create a two-car parking area.

On December 6, 1999, the Zoning Administrator notified Appellant of two violations: 1)
excavation of earth within the 100-foot shoreline setback; and 2) cutting of trees on a neighbor= s
property within the floodplain and within the 100-foot shoreline setback, both without the
necessary approvals (and without the neighbor= s consent), citing violations of ' ' 1000, 1820,
and 1903 of the Zoning Regulations. The notice gave Appellant the opportunity of curing the
violations by removing the fill, restoring the site, and replacing the trees. The notice did not offer
Appellant the opportunity to apply for a permit under ' 1820. Appellant does not appear to have
appealed the Notice of Violation; issues relating to the tree cutting or the neighbor are not within
the scope of the present appeal.

Appellant applied to the Planning Commission under ' 1820 for approval of the excavation.
Appellant= s application has not been provided in connection with the motion for summary
judgment. The Planning Commission appears to have treated the application as an application for
site plan approval and to remove A 100 cubic yards of earth material to construct a parking area@
under both ' ' 1803 and 1820. No mention is made in any of the materials regarding whether or
how much of the excavation was within the 100-foot shoreline setback; if it was, then a ' 1820.4
waiver is not available. ' 1820.4(e).

Section 1820 requires Planning Commission approval of the removal of earth products, except
when the removal is A incidental to or in connection with the construction of a building on the
same lot.@ The earth removal in the present case was not incidental to or in connection with the
construction of a building on the lot, although it was incidental to or in connection with the
dwelling, and the dwelling itself was undergoing renovations. Accordingly, Appellant= s Motion
for Summary Judgment as to Question 4 is DENIED, and summary judgment is entered in favor
of the Town on that question: the earth removal was not exempt from ' 1820.

Section 1820 requires that the application contain the same application materials as those
Aoutlined in ' 1803 for a site plan review.@ Nothing in this section requires that site plan review
be obtained as a prerequisite to an application for ' 1820 earth removal, nor that the ' 1803 site
plan review standards are somehow imported into ' 18202 by the requirement of ' 1820.1 that
the application contain the same application materials. The Town agrees that site plan approval
was not required in this particular case. As the removal of earth products in the present case was
associated with a single family seasonal dwelling, ' 1803 does not apply and site plan review
should not have occurred. Rather, the Planning Commission should have proceeded under '
1820 to apply the standards contained in ' 1820 and the A > Borrow Pit and Quarries= Ordinance@
referred to in ' 1820.2 (a copy of which has not been provided to the Court in connection with
the present motion). Accordingly, Appellant= s Motion for Summary Judgment as to Question 3
is GRANTED in PART, and summary judgment is entered in favor of Appellant on the first
clause of the Question: ' 1820 is properly interpreted as not requiring ' 1803 site plan review.

A municipality may adopt zoning regulations as authorized in 24 V.S.A. ' 4407, including, but
not limited to the types listed in that section. A municipality may assign a specific type of review
to its Planning Commission rather than to its Zoning Board of Adjustment3, so long as the
enabling act does not specify which body must perform the particular type of review. That a
municipality might regulate the extraction of earth resources in a zoning regulation is evident in
' 4407(8), which specifically authorizes a municipality to provide for the rehabilitation of such
sites. Accordingly, Appellant= s Motion for Summary Judgment as to Question 1 is DENIED,
and summary judgment is entered in favor of the Town on that question: the Colchester Zoning
Regulations may regulate the removal or replacement of earth resources.

Unlike the provisions of the statute invalidated in In re Appeal of Handy and In re Appeal of
Jolley Associates, 11 Vt. L. Week 339 (Nov. 17, 2000), ' 1820 provides sufficient standards to
guide the discretion of the Planning Commission. In exercising that discretion, is sufficient that
the deliberative body consider all the factors laid out in the ordinance to be considered. See,
Agency of Natural Resources v. Duranleau, 159 Vt. 233, 239 (1992). The ordinance need not
spell out the relative weight of the various factors. Accordingly, Appellant= s Motion for
Summary Judgment as to Question 2 is DENIED, and summary judgment is entered in favor of
the Town on that question: the Colchester Zoning Regulations provide sufficient standards in '
1820 for the determination of applications filed under that section.
Based on the foregoing, Appellant= s Motion for Summary Judgment is DENIED and summary
judgment is entered in favor of the Town on Questions 1, 2 and 4 of the Statement of Questions.
Appellant= s Motion for Summary Judgment is GRANTED in PART on Question 3 of the
Statement of Questions, in that ' 1820 does not require ' 1803 site plan review. We will hold a
telephone conference on May 4, 2001, at 11:45 a.m., to discuss the need for an evidentiary
hearing in this Court or a remand to the Planning Commission (or the Town Planner/Planning
Director under ' 1820.4) to address Appellant= s application solely based on the requirements of
' 1820.

Done at Barre, Vermont, this 23rd day of April, 2001.




___________________
Merideth Wright
Environmental Judge



                                           Footnotes
1.
     100 cubic yards is the threshold amount for consideration of a waiver under §1820.4(b).
Neither party has suggested that the volume may have been under the threshold amount, or that
evidence will be presented regarding the volume of earth removed.
2.
    Of course, if an earth removal project also and independently requires site plan review, the
Planning Commission is free to conduct the proceedings concurrently.
3.
     The Court has not been asked in this appeal to decide, and specifically does not here decide,
whether a municipality can delegate to its Town Planner or Planning Director the authority to
grant waivers from this provision under certain circumstances. See §1820.4
