                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                  }
In re: Cushing Family, LLC        }
 Site Plan Application            }      Docket No. 61-4-09 Vtec
        (Appeal of Cushing)       }
                                  }

                        Decision and Order on Pending Motions

      Appellant-Applicant Cushing Family, LLC (Applicant) appealed from a decision

of the Development Review Board (DRB) of the Town of Salisbury denying site plan

approval for a proposed retail store, repair service center, and rental and storage

buildings. Applicant is represented by Karl W. Neuse, Esq. and Benjamin W. Putnam,

Esq.; the Town is represented by James F. Carroll, Esq.

      Applicant has moved for partial summary judgment on Questions 5, 15, and 16

of its Statement of Questions, relating to which version of the zoning ordinance applies

to this application, and has also moved to amend its application for site plan approval.

If the Court should conclude that the application was considered under the incorrect

version of the zoning ordinance, the Town has moved to remand the matter to the DRB.

The following facts are undisputed unless otherwise noted.

      The property at issue in this appeal is located at the address of 991 U.S. Route 7,

in a Commercial zoning district in the Town of Salisbury. On Tuesday, December 23,

2008, Applicant delivered its application for Zoning Permit No. 08-64 (zoning permit

application) to the Town offices.     The application proposed to remove an existing

building and garage, and to construct and operate a “Retail Store/Repair Service

Center/Rental and Storage Building,”         on Applicant’s property. The        Zoning

Administrator did not personally receive and process the application until Monday,

December 29, 2008. The Zoning Administrator responded to the filing of the zoning
                                            1
permit application by a letter to Mr. Bradford Cushing (c/o Applicant) dated December

31, 2008. At this time, the Town of Salisbury Zoning Regulations enacted in 2007 (2007

Regulations) were in effect.

      The letter stated that “the land is zoned for commercial use and the uses you are

proposing are permitted,” and went on to list three prior requirements that would have

to be filed before the Zoning Administrator could act on the zoning permit application,

citing to sections of the 2007 Regulations for each such requirement.1 These three

requirements consisted of documentation of an approved or complying wastewater

system under § 320(5) of the 2007 Regulations; additional permit fees under § 320(1) of

the 2007 Regulations (as each of the separate proposed buildings required a separate

permit); and obtaining “site development plan review and approval” (site plan

approval) from the DRB under § 350, as required by § 320(6) of the 2007 Regulations.

      The letter “encouraged” Applicant to “appear before the DRB to present [the]

proposal,” and provided the application form necessary for Applicant to file with the

DRB, together with information about the required documentation and filing fee for the


1
  Under the 2007 Regulations, no development may commence unless a zoning permit
is issued by the Zoning Administrator. 2007 Regulations § 310. To obtain a zoning
permit, an applicant must submit a completed application to the Zoning Administrator.
Id. If the application is for a proposal that only requires a zoning permit, the Zoning
Administrator may proceed to issue or deny the permit, depending on whether it meets
the dimensional and district requirements in the zoning ordinance. Otherwise, if the
application is for a proposal that requires a discretionary ruling from the DRB, such as
conditional use approval, see id. § 342, or site plan approval, see id. § 350, the Zoning
Administrator must first refer the matter to the DRB for any approvals necessary, before
the Zoning Administrator may rule on the zoning permit. Id. § 310; see also Wesco, Inc.
v. City of Montpelier, 169 Vt. 520, 523 (1999) (Upon receiving a zoning permit
application, a zoning administrator has three options: grant the permit, deny the permit,
or forward it to the appropriate municipal panel for necessary approvals). Only after
the DRB has issued all necessary approvals and all other requirements are met, may the
Zoning Administrator take the “final step” of issuing the zoning permit. Appeal of
Ghia, No. 31-2-03 Vtec, slip op. at 2 (Vt. Envtl. Ct. Nov. 19, 2003) (Wright, J.)
                                           2
DRB proceeding. The letter informed Applicant that the Zoning Administrator would

“hold [the] permit and application in abeyance until [Applicant] or the [DRB] makes a

final decision.”

       On January 5, 2009, public notice was published in the Addison Independent for

the first public hearing before the Selectboard on proposed revisions to the Town’s

Unified Development Regulations (2009 Proposed Regulations), to be discussed at the

January 20, 2009 Selectboard meeting.

       Sometime between January 7, 2009, and January 13, 2009, Applicant delivered to

the DRB its Site Plan Application No. 2009-02 (site plan application) and the required

filing fee.   Notations on the application form indicate that the “[m]ap, names &

addresses” were received on January 2, 2009; that the $75 filing fee was received on

January 7, 2009; and that the application as a whole was considered complete or marked

as “received” on January 13, 2009.2 Applicant simultaneously submitted, as part of the

site plan application: a map and a list of adjacent property owners, two design

drawings, and a cover sheet from a state water supply and wastewater disposal permit

issued to Applicant in 2007 for an earlier proposal.

       The DRB held its first hearing on the site plan application on February 25, 2009.

As reflected in the meeting minutes (February 2009 DRB Minutes), the DRB discussed

the issue of whether the application should be reviewed under the 2007 Regulations or

2009 Proposed Regulations. As reflected in the minutes, the Zoning Administrator

“stated that the process started in late December and proceeded under the [2007]

Regulations.” February 2009 DRB Minutes, at 1. Because the DRB planned to conduct a

subsequent site visit and requested a “better site plan” from Applicant, the DRB voted

to continue the hearing at its March 18, 2009 meeting. Id.


2Although the parties dispute the date that the site plan application was “received” or
“submitted,” the discrepancies between their positions do not affect the resolution of
the present motions.
                                            3
       The hearing reconvened as planned on March 18, 2009. As reflected in the

minutes for that meeting (March 2009 DRB Minutes), the DRB again discussed whether

the site plan application should be reviewed under the 2007 Regulations or the 2009

Proposed Regulations. At that meeting, the members of the DRB agreed that the site

plan application was not complete until the filing fee was received, which was either on

January 7, 2009, or January 13, 2009. At the close of the meeting, the DRB entered into

deliberative session.

       On March 24, 2009, the DRB issued its written decision denying site plan

approval for the project (DRB Decision). The DRB denied the application on the basis

that “it should have been heard under the New Unified Regulations as referenced in 24

VSA. §4449(d).” DRB Decision, at 2. The DRB decision noted that the “notice of

hearing on the New Unified Regulations came out in the paper on January 5, 2009,” and

determined that the application submitted for site plan approval was not complete until

after that date. Applicant filed the present appeal with this Court on April 20, 2009.

       On May 29, 2009, the Selectboard held a special meeting on the 2009 Proposed

Regulations.   The public notice for the special Selectboard meeting stated that the

Selectboard was to “[r]eview and consider unified regulations in light of advice from

the League of Cities and Towns”; no other information regarding the 2009 Proposed

Regulations was included in the public notice. Facts are disputed as to whether or

when the public notice of the May 29, 2009 special Selectboard meeting was posted.3




3Although the affidavit of the DRB Clerk states that the public notice for the May 29,
2009 meeting had been posted “in the Town Office, at the Town Post Office[,] and at the
Town library prior to the meeting,” Cameron Aff. ¶ 13 (Aug. 13, 2009), Mr. Cushing
“examined the public notice board in the Town of Salisbury Offices on the afternoon of
May 28, 2009[,] and observed that no notice of the May 29, 2009 Selectboard meeting
had been posted at that time.” Cushing Aff. ¶ 6 (Sept. 10, 2009).
                                            4
       As reflected in the minutes of the May 29, 2009 special Selectboard meeting, the

Selectboard voted to “adopt the Unified Development Regulations as written as

‘Interim’ Regulations” (2009 Interim Regulations).




       Questions 15 and 16: Zoning Permit Application

       Applicant has moved for summary judgment on Questions 15 and 16 of the

Statement of Questions, as to whether Applicant has vested rights under the 2007

Regulations with regard to the uses proposed in its December 2008 zoning permit

application.

       Although this is an appeal only of the DRB’s decision regarding Applicant’s site

plan application, the Zoning Administrator made certain determinations in his

December 31, 2008 letter as to the use categories applicable to the project and what

kinds of additional approvals were necessary before he could rule on the zoning permit

application. The Zoning Administrator’s December 31, 2008 letter was not appealed,

and therefore became final. See 24 V.S.A. § 4472(d).

       As those determinations were made prior to January 5, 2009, Applicant has

vested rights to have the proposal considered under the use categories in the 2007

Regulations, specifically, as stated in the Zoning Administrator’s letter, that “the land is

zoned for commercial use” and that the proposed uses are classified as “permitted”

uses under the 2007 Regulations.4

       The December 31, 2008 letter explained that Applicant would have to obtain site

plan approval from the DRB before the Zoning Administrator could rule on the zoning

4
    That is, if the 2009 Regulations make the proposal a conditional use requiring
conditional use approval, as suggested in the minutes of the February and March DRB
meetings, Applicant is not required to obtain conditional use approval for the project,
because the types of other approvals required as a prerequisite for zoning permit under
§ 320(6) of the 2007 Regulations were fixed as of the December 31, 2008 letter.
                                             5
permit application, and further explained how to apply to the DRB for such approval.

The fact that Applicant’s application to the DRB for site plan approval was filed after

January 5, 2009, does not act retroactively to alter the effect of the Zoning

Administrator’s December 31, 2008 letter.

       Therefore, summary judgment must be GRANTED to Applicant on Questions 15

and 16, in that the December 31, 2009 letter gave Applicant vested rights under the 2007

Regulations as to the use categories applicable to the project and what kinds of

additional approvals were necessary.




       Question 5: Regulations Applicable to DRB Consideration of Site Plan

       Question 5 of the Statement of Questions asks whether Applicant has “a right to

have the Site Plan Application reviewed under the 2007 Regulations,” as opposed to

under the 2009 Interim Regulations adopted on May 29, 2009.

       The Selectboard’s January 5, 2009 publication of the public notice for the first

public hearing on the 2009 Proposed Regulations triggered 24 V.S.A. § 4449(d). That

provision states, in part:

              If a public notice for a first public hearing . . . is issued . . . by the
       local legislative body with respect to the adoption or amendment of a
       bylaw . . . , the administrative officer, for a period of 150 days following
       that notice, shall review any new application filed after the date of the
       notice under the proposed bylaw or amendment and applicable existing
       bylaws and ordinances.
24 V.S.A. § 4449(d). Since the site plan application was not submitted until some time

between January 7, 2009, and January 13, 2009, after the public notice was published, it

should have been considered by the DRB under the 2009 Proposed Regulations because

the review occurred within the 150-day window mandated by 24 V.S.A. § 4449(d).




                                              6
      The fact that the zoning permit application for the project was submitted prior to

the public notice, which gave Applicant vested rights under the 2007 Regulations as to

the use categories applicable to the project and what kinds of additional approvals were

necessary, does not change this result.      Once the zoning permit application was

received, the Zoning Administrator correctly noted that the project required site plan

approval from the DRB before the zoning permit could be acted upon, and referred

Applicant to the DRB to apply for site plan approval. See supra note 1.

      As discussed above, before the Zoning Administrator may rule on a zoning

permit application, he must first refer the matter to the DRB for any approvals

necessary under the zoning regulations. See Wesco, 169 Vt. at 523. The Vermont

Supreme Court has explained that submission of one type of application, which vests an

applicant’s rights under the regulations in effect as to that application, does not also

give the applicant vested rights as to applications later submitted under a new set of

regulations. See In re Taft Corners Assocs., Inc., 171 Vt. 135, 139–140 (2000) (holding

that a subsequent zoning permit application did not vest at the time the applicant

submitted a prior subdivision application; instead, the applicant’s rights vested for each

application separately at the time that each was individually submitted); see also

Appeal of Jolley Assocs., No. 198-11-03 Vtec, slip op. at 4 (Vt. Envtl. Ct. Apr. 11, 2005)

(Wright, J.) (stating that applications submitted for two separate approvals, specifically

site plan and conditional use approval, are “two types of applications and their review

processes are separate and distinct” (citing In re Champlain Oil Co., 2004 VT 44, ¶17;

Taft Corners, 171 Vt. at 139–140)). Therefore, Applicant’s submission of the zoning

permit application prior to the public notice did not vest any rights to have the later-

filed site plan application reviewed under the 2007 Regulations.

      The DRB should have conducted a substantive review of the project’s site plan

application under the 2009 Proposed Regulations, because the application was

submitted within the 150-day time period provided in § 4449(d). However, although
                                            7
the DRB evidently realized that the application “should [be] heard under the New

Unified [Development] Regulations,” it did not proceed to do so. DRB Decision, at 2.

Rather, it denied the application for site plan approval without ruling on its merits.

       Even in a de novo appeal, the Court acts in an appellate capacity to decide issues

that divide the parties after the DRB has ruled in the first instance. See In re Lathrop

Ltd. P’ship II, No. 210-9-08 Vtec, slip op. at 4 (Vt. Envtl. Ct. Aug. 14, 2009) (Durkin, J.)

(The Vermont Supreme Court has “cautioned against a review on appeal of land use

issues that had not first been presented for consideration by the municipal panel

below.” (citing Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 13 (1989)).           Therefore,

regardless of whether Applicant now seeks to amend the site plan application, and

regardless of the scope of that amendment, the DRB should consider the merits of the

site plan application under the applicable regulations in the first instance. Therefore,

the Town’s Motion to Remand (found in the Town’s response to Appellant’s Motion to

Amend the Site Plan Application) is GRANTED.

       On remand, it will be for the DRB to determine in the first instance whether to

apply the 2009 Regulations, whether the 2009 Interim Regulations were properly

adopted, and, if not, what Regulations to apply to the site plan application.




       Applicant’s Motion to Amend

       Applicant also has moved to amend its site plan application. Because the Court is

not ruling on the application, but is instead remanding it to the DRB, it will be for the

DRB to decide in the first instance whether to consider any changes to the site plan.

Applicant’s Motion to Amend has therefore become moot.




                                             8
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Applicant’s Motion for Summary Judgment is GRANTED in Part and DENIED in

Part, as discussed above, and the Town’s Motion to Remand is GRANTED, concluding

this appeal.




       Done at Berlin, Vermont, this 17th day of December, 2009.




                           _________________________________________________
                                 Merideth Wright
                                 Environmental Judge




                                           9
