                                   STATE OF VERMONT
                   SUPERIOR COURT — ENVIRONMENTAL DIVISION




                                                   {
       In re All Metals Recycling, Inc.            {             Docket No. 171-11-11 Vtec
       Discretionary Permit Application            {
                                                   {


                         Decision on Motion for Summary Judgment
                        and Motion to Amend Statement of Questions

       Before us is an application for a discretionary zoning permit, submitted by Appellee
Riggs Properties and Interested Person the Town of Williston, Vermont (Applicants), seeking
approval for Appellee All Metals Recycling, Inc. (All Metals) to establish an outdoor storage
area and install a scale house and scale at 38-42 Dorset Lane in the Town of Williston, Vermont
(the Town) to conduct what the Town terms a “metals recycling operation.” After a hearing, the
Town of Williston Development Review Board (the DRB) granted the permit with conditions.
Darlene Ashley, John Chandler, James Babcock, Jennifer Ashley, William Babcock, Shawn
Chapman, Wayne Burnett, Jeannine Burnett, Patty Shortsleeves, George Shortsleeves, Gary
Boutin, Michael Burnett, and Mark Burnett (Neighbors) appeal the DRB’s decision and have
filed a Statement of Questions including nine Questions.
       Now pending before the Court is the Town’s motion for summary judgment on all nine
questions in Neighbors’ Statement of Questions.        Neighbors have filed a memorandum
opposing summary judgment, to which the Town has replied.            Also before the court is
Neighbors’ motion to amend their Statement of Questions, to which the Town has filed a
memorandum in opposition.
       The Town is represented by Paul S. Gillies, Esq. Neighbors are represented by Hobart F.
Popick, Esq.   All Metals Recycling, Inc., represented by Robert F. O’Neill, Esq., has not
submitted any filings regarding this motion.




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                                       Factual Background

       For the sole purpose of putting the pending motions into context, we recite the following
facts, which we understand to be undisputed unless otherwise noted:
       1. All Metals operates a facility at 38-42 Dorset Lane in the Town of Williston, Vermont.
            While Applicants consider the facility to be a metals recycling operation, Neighbors
            dispute the extent and nature of the activities All Metals conducts or proposes to
            conduct on the property.
       2. While some of All Metals’ facility operates on property owned by Riggs Properties,
            at some time in the past, All Metals’ operations were established on or expanded
            onto the Town’s adjacent property.
       3. Pursuant to the Unified Development Bylaw for the Town of Williston, Vermont (the
            Bylaw), the subject property is located in the Town’s Gateway Zoning District North.
       4. All Metals was operating without a town or state zoning permit when some of the
            Neighbors contacted the Town with concerns about its unpermitted operations.
       5. At the request of the Town Zoning Administrator, the Town and Riggs Properties
            applied for a discretionary permit, designating All Metals as “Facility Operator.”
            Both Gary Riggs, as representative of Riggs Properties, and Williston Town Manager
            Richard McGuire, as representative of the Town, signed the application. Therefore,
            according to the Town, Riggs Properties and the Town are the only applicants in this
            matter.   Neighbors dispute who the proper applicants are, but do not address
            whether they believe that All Metals is also an applicant.
       6. On October 25, 2011, the DRB considered and approved Discretionary Permit
            Application DP 12-05 with conditions.
       7.   Neighbors, who participated in the October 25 DRB hearing, thereafter timely
            appealed the DRB’s decision to this Court.

                                 Motion for Summary Judgment

       Presently before the Court is the Town’s motion for summary judgment on all nine
questions in Neighbors’ Statement of Questions.          We will grant summary judgment for a
moving party if “the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, . . . show that there is no genuine issue as to any material
fact” and the moving party “is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3) (2011)

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(amended 2012)1; see V.R.E.C.P. 5(a)(2). In our examination of the facts, we give the non-
moving party the benefit of all reasonable doubts and inferences, and accept as true all factual
assertions made in opposition “so long as they are supported by affidavits or other evidentiary
material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.

I.      Questions 1 and 2

        Question 1 of Neighbors’ Statement of Questions essentially asks whether All Metals
previously engaged in unpermitted activities on the subject property. Assuming the answer to
Question 1 to be “Yes,” Question 2 of Neighbors’ Statement of Questions asks whether the
Town must commence an enforcement proceeding against All Metals based on its prior
unpermitted activities on the subject property. Because we determine as a matter of law that
the Town is not required to commence an enforcement proceeding against All Metals even if it
had engaged in unpermitted activities, we need not determine whether All Metals did in fact
engage in the alleged unpermitted activities. Accordingly, we decline to analyze Question 1
and proceed instead to an analysis of Question 2.
        In its motion for summary judgment, the Town argues that 24 V.S.A. § 4452 does not
require the Town to issue a notice of violation or initiate an enforcement proceeding for All
Metals’ previous unpermitted activities.          Neighbors respond that the plain language of
Section 4452 requires enforcement of the Bylaw with respect to All Metals’ past activities.2 We
interpret a zoning ordinance using the familiar rules of statutory construction. In re Appeal of
Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words according to their plain and
ordinary meaning, giving effect to the whole and every part of the ordinance.” Id. If the plain
language resolves the interpretive conflict, “there is no need to go further, always bearing in
mind that the paramount function of the court is to give effect to the legislative intent.”
Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986).


1We note that an updated version of V.R.C.P. 56 took effect on January 23, 2012. We analyze this motion,
however, under the previous version of the rule because that version was in effect at the time the pending
motion was filed, and, at any rate, the rule change does not affect our analysis here.
2 In Question 2 of their Statement of Questions, Neighbors refer to both the Bylaw and Vermont state law

to argue that the Town must commence an enforcement proceeding against Applicants. Neighbors do
not cite in their Statement of Questions or their statement in opposition to summary judgment, however,
any specific provision of the Bylaw requiring punitive enforcement of Applicant’s engagement in
unpermitted activities. We therefore address only Vermont state law in our discussion above.

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       When violation of a zoning bylaw occurs, “the administrative officer shall institute . . .
any appropriate action, injunction, or other proceeding to prevent, restrain, correct, or abate
that . . . use, or to prevent, in or about those premises, any . . . use constituting a violation.”
24 V.S.A. § 4452. The plain language of 24 V.S.A. § 4452 thus gives the administrative officer
discretion to institute “any appropriate action” that might cure a violation.           See In re
Letourneau, 168 Vt. 539, 549 (1998) (“Although a zoning administrator must enforce the zoning
ordinance, the nature of the remedy sought is discretionary.”).
       Neither party disputes that the Town did not pursue an injunction or court action to
prevent All Metals from engaging in any unpermitted activities on the subject property.
Instead, rather than penalize All Metals, the Town sought compliance by asking All Metals to
apply for a permit, which Riggs Properties and the Town, as landowners, did, naming All
Metals as the project operator. The request for an application was an attempt to correct or abate
the violation, and therefore, was an “appropriate action” in accordance with 24 V.S.A. § 4452.
Accordingly, we GRANT summary judgment to the Town on Question 2. In addition, because
no enforcement action has been filed with this Court we do not analyze whether All Metals
previously engaged in unpermitted activities, and therefore we DISMISS Question 1.

II.    Questions 3, 4, and 5

       Questions 3, 4, and 5 of Neighbors’ Statement of Questions raise the issue of whether the
Bylaw prohibits Applicant’s proposed use of the subject property. Specifically, the Questions
ask whether the proposed use falls within the definition of “Waste Management and
Remediation Services” as defined in the Bylaw by reference to the North American Industry
Classification System (NAICS). See Bylaw Table 33.A.
       The Town avers that the use proposed in its discretionary permit application, “existing
metals recycling operation,” qualifies as “Waste Management and Remediation Services,” a
conditional use entitled to a discretionary permit in the Gateway Zoning District North.
Neighbors contend that prior and current activities on the site indicate that the proposed use
actually falls under the definition of “Recyclable Material Merchant Wholesalers,” a use the
Bylaw does not specifically permit and consequently prohibits. See Bylaw Table 33.A (“Uses
that are not specifically permitted are prohibited.”). Thus, the NAICS classification under




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which the use appropriately falls may determine whether Applicants are entitled to a zoning
permit.
          The   definition   of   “Waste     Management   and   Remediation   Services”   includes
“establishments . . . operating materials recovery facilities (i.e., those that sort recyclable
materials from the trash stream) . . . .” (Town’s Motion for Summary Judgment, Ex. 3, filed Dec.
15, 2011.) It further specifies that “[t]here are three industry groups within the subsector that
separate these activities into waste collection, waste treatment and disposal, and remediation
and other waste management.”           Id.    The definition excludes establishments that engage
primarily in sewage disposal and long-range hauling, as well as “some activities that appear to
be related to waste management . . . [f]or example, . . . waste management consulting services
. . . .” Id.
          In contrast, “Recyclable Material Merchant Wholesalers” “comprises establishments
primarily engaged in the merchant wholesale distribution of automotive scrap, industrial scrap,
and other recyclable materials.” (Town’s Motion for Summary Judgment, Ex. 2, filed Dec. 15,
2011.) The definition cross-references two other types of establishments falling under different
NAICS classifications: those that “[d]ismantl[e] motor vehicles [to sell] used parts” (“Motor
Vehicle Parts (Used) Merchant Wholesalers”) and those “where commingled recyclable
materials, such as . . . metals are sorted into distinct categories” (“Materials Recovery
Facilities”).
          Again, we emphasize that any activities All Metals may or may not have conducted
prior to the DRB’s granting of a discretionary permit have no bearing on the proceedings
currently before the Court. This Court must consider only Applicants’ proposed use, as stated
on its Discretionary Permit Application. See 10 V.S.A. § 8504(h); V.R.E.C.P. 5(g); In re Torres,
154 Vt. 233, 235 (1990) (“The reach of the superior court in zoning appeals is as broad as the
powers of a zoning board of adjustment or a planning commission, but it is not broader.”).
          Even with this limited scope, however, Neighbors have raised a genuine issue of
material fact as to whether Applicants’ proposed use will include activities which are properly
classified under the “Recyclable Material Merchant Wholesalers” NAICS definition or under the
“Waste Management and Remediation Services” NAICS definition.              In their discretionary
permit application, Applicants described the project as seeking to “accommodate an existing
metals recycling operation.”          (Town’s Motion for Summary Judgment, Applicant’s


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Discretionary Permit Application Form, Ex. 4, filed Dec. 21, 2011.) On the facts before us,
Applicants’ application is worded vaguely enough to support either the Town’s or Neighbors’
favored constructions.
       The Town describes All Metals’ facility as a “scrap metal recycling facility,” which “is
recycling washing machines and other metals, not including motor vehicles, restoring them to
useful life and selling them, or disposing of them as waste metal products.”3 (Town’s Statement
of Material Facts ¶¶ 1, 7, filed Dec. 15, 2011.) The Town does not address whether All Metals
plans to wholesale the materials it recycles, however. Further, the Town has provided no
evidence in the form of answers to interrogatories, depositions, or affidavits indicating the
precise uses to which All Metals intends to put the subject property.
       Neighbors respond with an affidavit averring that All Metals “holds itself out as being
in the business of buying scrap metal . . . as well as purchasing and removing junk cars.”
(Affidavit of Mark Burnett ¶ 4, filed Feb. 1, 2012.) Neighbors have also submitted photos
purportedly showing “junk cars” on Applicant’s premises as late as Fall of 2011. (Id., ¶ 10;
attachments to Neighbors’ Ex. A.) From their filings, we understand Neighbors’ argument to be
not only that All Metals has engaged in these activities in the past, but that All Metals intends to
continue to engage in these activities in the future.
       Because Neighbors have raised genuine issues of material fact as to what activities All
Metals will conduct if its discretionary permit is approved, we DENY summary judgment to the
Town on Questions 3, 4, and 5.

III.   Questions 6 and 7

       The Town asserts that Questions 6, 7, and 8 are mere quibbles over who should have
signed the permit application. Neighbors have sought to clarify:
       “Questions 6-8 address whether Applicant is eligible for a permit in the absence
       of a proper, enforceable lease agreement allowing All Metals to use Town
       property for private, commercial purposes, and to the extent the Town lacks the
       authority to agree to such a lease, asks whether the Town has standing to apply
       for the permit in issue.” (Neighbors’ Opposition to the Town of Williston’s
       Motion for Summary Judgment 12, filed Feb. 1, 2012.)


3 As noted above, the Court will not consider Applicant’s prior activities when reviewing Applicant’s
current application for a discretionary permit. We construe the Town’s arguments here, however, as
indicating the uses to which Applicant plans to put its property in the future.

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We begin our analysis with Questions 6 and 7 and address Question 8 below.
        Question 6 asks if “any Applicant [is] eligible for a Discretionary Permit under the
Bylaw . . . in the absence of a proper interest in the portion of the subject property that is owned
by the Town of Williston.” (Neighbors’ Statement of Questions, filed Dec. 8, 2011). Question 7
asks if a permit may issue “where one or more of the Applicants has no ownership interest in a
portion of the subject property . . . .” Id. Viewing Questions 6 and 7 in the light most favorable
to Neighbors as non-movants, we read them to ask whether All Metals can be considered an
“applicant” for a discretionary permit under the Bylaw without some form of lease or other
agreement between All Metals and the Town giving All Metals some interest in some portion of
the subject property.4
        Under the Bylaw, a permit applicant “is, by definition, the owner or owners of the
property on which development is proposed.” Bylaw § 46.3.12. Accordingly, discretionary
permit applications “must be signed by the owner of the land on which the development is
proposed or by a trustee or guardian of the owner.” Bylaw § 6.4.1. When “the proposed
development will involve more than one property, the owners of all lots or parcels involved
must sign the application . . . .” Id. There is nothing in the Bylaw that requires a leaseholder or
non-landowner’s signature.
        All Metals’ operations occur on two parcels of property: one owned by Riggs Properties
and one owned by the Town. All Metals is named on the application as the Facility Operator
but is not a landowner. (See Town’s Motion for Summary Judgment, Applicant’s Discretionary
Permit Application Form, Ex. 4, filed Dec. 21, 2011.) Because the Town owns part of the subject
property, the Bylaw required its representative to sign the application form, and the Town
Manager, as representative of the Town, did so. Because All Metals is not a landowner, nothing
in the Bylaw required it to also sign the application form, and nothing in the Bylaw suggests
that All Metals must be considered an “applicant.”




4 Because they refer to “applicants,” we also read Questions 6 and 7 to ask whether Riggs Properties, as
an “applicant,” is required to have some interest in the Town’s land. We assume, however, that, in
submitting the discretionary permit application, Riggs Properties applied only for All Metals’ activities
on its own land and was not seeking permission for All Metals to engage in activities on the Town’s land.
Gary Riggs, as representative of Riggs Properties, signed the application form, as required by Bylaw §
6.4.1. Riggs Properties was therefore a proper applicant as to the property that it owns.

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        Thus, giving Neighbors the benefit of all reasonable doubts and inferences in our
interpretation of Questions 6 and 7, our review of the Bylaw reveals that it does not require that
All Metals have any property interest in the Town’s land in order for the Town to apply for a
discretionary permit. Accordingly, all appropriate applicants signed the discretionary permit
application form, and we GRANT summary judgment to the Town on Questions 6 and 7,
concluding as a matter of law that both the Town and Riggs Properties were proper applicants
for the discretionary permit at issue.

IV.     Question 8

        Question 8 asks whether, “[t]o the extent the Town of Williston is an Applicant,” the
Town may “be issued [a Discretionary Permit] to conduct a private, for-profit enterprise on
public property.”       We interpret Neighbors’ Question 8 to ask whether the Town’s
constitutionally and statutorily allotted powers include letting All Metals conduct its activities
on Town property, with or without a lease agreement.5 (See Neighbors’ Opposition to the
Town of Williston’s Motion for Summary Judgment 13, filed Feb. 1, 2012.)
        In Vermont, “a municipality has only those powers and functions specifically authorized
by the legislature, and such additional functions as may be incident, subordinate or necessary to
the exercise thereof.” Hinesburg Sand & Gravel Co. v. Town of Hinesburg, 135 Vt. 484, 486
(1977) (holding a Town’s operating a gravel pit in support of road maintenance to be one such
function). If the primary purpose of a public expenditure is to serve a public purpose, the
expenditure is lawful. Bates v. Bassett, 60 Vt. 530 (1888).            If the primary purpose of the
expenditure is to promote a private end, however, the expenditure is illegal. Id. Thus, a public
expenditure may only promote a private purpose if the private purpose is incidental or
subordinate to a public purpose. See Hinesburg Sand & Gravel, 135 Vt. at 486; see also Bates, 60
Vt. at 530 (stating that a public purpose must not be “’set up as a mere pretext to conceal a
private purpose”).




5  We will not issue an advisory opinion resulting from hypothetical facts. In re Appeal of 232511
Investments, Ltd., 2006 VT 27, ¶ 19. We therefore will not rule on whether the Town is eligible in the
abstract “to conduct a private, for-profit enterprise on [its] property,” as Question 8 asks as worded,
because the Town is not proposing to conduct any activity itself, but rather to allow All Metals to conduct
an activity on Town land.

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        Here, the Town argues that a lease with All Metals will further a public purpose because
24 V.S.A. § 2202a both authorizes and requires municipalities to take responsibility for waste
management services, services that All Metals will provide. Neighbors contend that All Metals’
activities are commercial in nature and therefore advance private ends that are neither
incidental nor subordinate to any legitimate Town function. Neighbors therefore argue that,
under Hinesburg Sand & Gravel and Bates, the Town is ineligible for a discretionary permit for
All Metals’ activities.
        Had the Town provided a lease with All Metals to the Court, it is possible our analysis
would have ended in its favor. See 24 V.S.A. § 2403 (“The selectmen may lease such lands as
they deem beneficial, reserving rents for the same which shall be annually paid into the treasury
of the town.”); see also L'Esperance v. Town of Charlotte, 167 Vt. 162, 169 (1997) (“Towns have
the power to hold and manage real property, and this power includes the authority to lease its
real estate as necessary for public purposes.” (citations omitted)). “Reasonable rent” meets the
“public purpose” requirement. Id. at 165. Absent a lease, however, and having insufficient
evidence before us to discern what public benefit, if any, will arise from All Metals’ operations
on Town land, we cannot make a determination on Question 8 as a matter of law.
Consequently, genuine issues of material fact exist, and we must DENY the Town’s motion for
summary judgment on Question 8.

V.      Question 9

        Neighbors’ Question 9 asks whether, “to the extent not covered by” Neighbors’ first
eight Questions, Applicant is “eligible for a Discretionary Permit under the Bylaw.”
(Neighbors’ Statement of Questions, filed Dec. 8, 2011.) The Town argues that the general
statement in Question 9 cannot be used to supplement the other Questions in the Statement of
Questions. We agree.
        If an appellant wishes to have an issue addressed on appeal, he or she must specifically
raise the issue in a Statement of Questions. Reporter’s Notes, V.R.E.C.P. 5(f) (“The statement [of
questions] functions like a pleading to limit the issues that are to be heard on the appeal . . . .”);
In re Garen, 174 Vt. 151, 156 (2002) (“[a]n appeal to the environmental court is confined to the
issues raised in the statement of questions filed pursuant to an original notice of appeal.”). The
Statement of Questions not only serves to establish the scope of the appeal but also provides


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notice of the issues to the court and the parties. See In re Musty Permit, No. 174-10-10 Vtec, slip
op. at 2 (Vt. Super. Ct. Env. Div. July 28, 2011) (Durkin, J.); see also In re Frostbite Mine, No. 12-
1-11 Vtec, slip op. at 2 (Vt. Super. Ct. Env. Div. November 3, 2011) (Durkin, J.) (“A statement of
questions also serves to set the parameters of the appeal.”).
        Question 9 fails to limit the scope of appeal; in fact, it expands it. Neighbors’ eight other
Questions each raise specific issues of state and local law. On the other hand, as the Town has
noted, Question 9 apparently seeks to preserve any issue Neighbors did not raise in their eight
other questions.      Neighbors have not offered argument or evidence to dispute this
characterization. Moreover, Question 9 is so broad and ambiguous as to provide no notice to
Applicant or the Court of the issue or issues Neighbors wish to address. See Musty Permit
Appeal, No. 174-10-10 Vtec, slip op. at 2. (“It would be unfair and prejudicial to the applicant
here, and to any other potential parties who have not joined in this appeal, for the Court to now
take up issues they had no notice would be adjudicated.”).
        In conclusion, while Neighbors’ first eight questions provide clear notice to this Court
and all parties of the specific issues on appeal, Question 9 serves only as a placeholder for many
possible issues which were not identified or specified at the preliminary stage of this appeal.
We therefore DISMISS Question 9.

                             Motion to Amend Statement of Questions

        Also before the Court is Neighbors’ motion to amend their Statement of Questions to
add a Question 10 as follows:
        Should Applicants have been denied a Discretionary Permit where Applicants
        failed to demonstrate adequate provision for off-street parking and loading as
        required by Chapter 14 of the Bylaw?
Applicants contend that this Court is prohibited from granting Neighbors’ motion to amend.
        “Like motions to amend a complaint under V.R.C.P. 15, motions to amend a Statement
of Questions are to be liberally granted, so long as they do not prejudice the other party.” In re
Ridgewood Estates Homeowners Ass’n, No. 57-4-10 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div.
Jan. 26, 2011) (Wright, J.). Prejudice may exist, for example, where a motion to amend was
submitted after trial, after a statement of questions had already been amended, or after a motion
for summary judgment was denied. See In re Huntington Remodeling Application, No. 210-10-
07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Nov. 5, 2008) (Durkin, J.).



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       Here, granting Neighbors’ motion to amend will not prejudice the parties as this matter
is in its early stages. No hearings have been set, and no discovery has occurred. Nor has the
Statement of Questions previously been amended. Applicants contend that prejudice will result
because a motion for summary judgment on the first nine Questions in Neighbors’ Statement of
Questions is pending. As discussed above, however, several of the original Questions remain
before this Court. The addition of another Question will not prejudice Applicants. Nor have
Applicants presented any evidence that Neighbors acted in bad faith in seeking to amend the
Statement of Questions. See Verizon Wireless Barton Act 250 Permit Telecommunications
Facility, No. 6-1-09 Vtec, slip op. at 11 (Vt. Envt. Ct. Feb. 2, 2010) (Durkin, J.) (stating that a
motion to amend is “typically granted when it ‘is neither frivolous nor made as a dilatory
maneuver or in bad faith.’” (quoting In re Guardianship of L.B., 147 Vt. 82, 84 (1984)). Finally,
the fact that Neighbors filed their motion to amend well beyond the 20-day time limit for filing
a statement of questions does not affect our analysis. See Huntington, No. 210-10-07, slip op. at
4 (allowing a motion to amend “many months” after filing the original statement of questions).
       Because amending Neighbors’ Statement of Questions to add Question 10 will not result
in prejudice to the parties, we GRANT Neighbors’ motion to amend. However, we want to
caution the parties that because a statement of questions functions to establish and limit the
scope of litigation in advance of trial, see Reporter’s Notes, V.R.E.C.P. 5(f) (“The statement
functions . . . to limit the issues that are to be heard on the appeal.”), motions to amend should
not serve as a replacement for a timely and complete statement of questions.

                                           Conclusion

       For the reasons detailed above, we GRANT the Town’s motion for summary judgment
on Questions 2, 6, and 7, DENY the Town’s motion for summary judgment on Questions 3, 4, 5,
and 8, and DISMISS Questions 1 and 9 of Neighbors’ Statement of Questions. All parties
should prepare to present evidence on the issue raised by Questions 3, 4, and 5—that is,
whether Applicants’ proposed use and its associated activities can be appropriately categorized
as “Waste Management and Remediation Services” as defined in the Bylaw with reference to
the NAICS—and Question 8, regarding whether the proposed project serves a public purpose.
       We also GRANT Neighbors’ motion to amend their Statement of Questions by adding
the proposed Question 10. As such, all parties shall also prepare to present evidence on the



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issue raised by Question 10 – that is, whether Applicants’ proposal demonstrates adequate
provision for off-street parking and loading.
       The Court will now set this matter for trial. On or before Friday, May 4, 2012, the parties
shall provide to the Court, in writing, their dates of unavailability for a one-day trial in July,
August, and September, 2012. If the parties believe that more than one day of trial will be
necessary, they should so indicate.

       Done at Berlin, Vermont this 23rd day of April, 2012.




                                                               Thomas G. Walsh,
                                                               Environmental Judge




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