                                          STATE OF VERMONT

                                      ENVIRONMENTAL COURT

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Appeal of Hart                                        }                          Docket No. 183-10-04 Vtec
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                Decision and Order on Cross Motions for Summary Judgment

         Appellant–Applicant James Tyler Hart (Appellant) appealed from a decision of

the Town of Huntington Planning Commission (Commission) dated September 15,

2004, which denied Appellant’s request that the Commission amend its September 9,

2003 final subdivision approval for Appellant’s proposed three-lot planned residential

development (PRD) subdivision on Happy Hollow Road. Appellant had requested that

the Commission amend its 2003 decision by deleting Condition # 7, which required

Appellant to ‚provide a letter of resolution related to fire protection from the

Huntington Fire Chief Tate Jeffrey.‛ Appellant is represented by Robert J. Perry, Esq.;

the Town of Huntington (Town) is represented by James F. Carroll, Esq. Both parties

filed motions for summary judgment.

                                             Factual Background

         The following facts are undisputed unless otherwise noted:

1.       On April 25, 2003, Appellant submitted a subdivision application for a three-lot

PRD/subdivision on Happy Hollow Road.1[1]

2.       There are two ponds in the area of the proposed PRD, both of which are on lands

owned by Appellant at the time of the application. The ‚lower pond‛ is located within

the proposed PRD on proposed Lot 1; the ‚upper pond‛ is located easterly of the

‚lower pond‛ on land not included in the proposed PRD. At an unspecified date

1[1]
    The application form used is for a subdivision, but the cover letter says the application is for a PRD—see
Attach. A to the Town’s Statement of Undisp. Material Facts.
between September 30, 2003, and April 20, 2004, Appellant sold the parcel containing

the upper pond to a third party named Ganzenmuller.

3.     On June 10, 2003, the Commission held a preliminary hearing on Appellant’s

application, granting preliminary approval by unanimous vote, and determining that

‚Applicant will request letters from the Fire Chief and Superintendent of Schools for

July 1st.‛

4.     On June 17, 2003, Appellant submitted revised plans for the subdivision, again

proposing a three-lot PRD with Lot 1 being 10.1 acres, Lot 2 being 28.7 acres, Lot 3 being

2.7 acres.

5.     On July 15, 2003, Huntington Fire Chief Tate Jeffrey submitted a letter to the

Commission, stating that ‚it would be appreciated if Mr. Hart would authorize the

department to install, at our cost, a dry hydrant in [the upper pond] if we choose to do

so,‛ and recommending that ‚if the department doesn’t install a hydrant prior to the

issuance of either building permit for the two new lots, that the installation of a dry

hydrant, by the owner/builder, be a stipulation of the first permit.‛

6.     Also on July 15, 2003, Appellant submitted a letter to the Commission, stating in

part that ‚the Planning Commission does not have authority to make the installation of

a dry hydrant a condition of approval of my 3-lot subdivision. I would object to any

such condition.‛

7.     On the evening of July 15, 2003, the Commission reconvened the hearing on

Appellant’s PRD/subdivision request, deciding to continue deliberations to a future

meeting.

8.     On September 9, 2003, the Commission issued its Findings of fact, Conclusion,

and Order, approving the PRD/subdivision and imposing Condition # 7 which reads as

follows: ‚The Applicant will provide a letter of resolution related to fire protection from

Huntington Fire Chief Tate Jeffrey.‛

9.     No appeal was taken from the September 9, 2003 Final Order.
10.      Thereafter, Appellant, Fire Chief Tate Jeffrey, and members of the Commission

exchanged numerous oral and written communications, but failed to produce a

resolution of the disputed issue of whether it was appropriate to require that a hydrant

be installed and, if so, who should shoulder its costs.

11.      On September 1, 2004, Appellant submitted a letter requesting that the

Commission ‚reconsider item # 7 of the final order,‛ and stating that ‚*s+pecifically, the

request is to remove and delete the requirement to ‘provide a letter of resolution related

to fire protection from Huntington Fire Chief Tate Jeffrey.’‛

12.      On September 14, 2004, the Commission considered Appellant’s request to

amend the Final Order, and sent a letter to Appellant on September 15, 2004, denying

Appellant’s ‚request for deletion of item 7.‛

13.      On October 11, 2004, Appellant appealed ‚the Huntington Planning Commission

Decision dated September 15, 2004, denying Appellant’s request for modification of a

prior Planning Commission approval.‛

                                                   Discussion

         Mr. Hart is appealing from the Commission’s September 15, 2004 denial of his

request to delete Condition # 7 from its prior decision, which states ‚*t+he Applicant will

provide a letter of resolution related to fire protection from Huntington Fire Chief Tate

Jeffrey.‛ No such resolution is apparently possible, as the Appellant and Fire Chief

disagree about the need for a hydrant and who should pay for it, if one is required.

         The Town characterizes Hart’s appeal as ‚an untimely collateral attack on a

condition imposed on September 9, 2003 by the Huntington Planning Commission,‛

Town’s Mot. for Summ. J., at 3. In doing so, the Town points out, correctly, that

numerous Vermont cases hold that collateral attacks on zoning decisions are barred by

24 V.S.A. § 4472(d).2[2] See City of South Burlington v. Dept. of Corrections, 171 Vt. 587,

2[2]
  Section 4472(d) states in its entirety: “(d) Upon the failure of any interested person to appeal to an appropriate
municipal panel under section 4465 of this title, or to appeal to the environmental court under section 4471 of this
588-89 (2000) (‘The broad and unmistakable language of *§ 4472(d)+ is designed to

prevent any kind of collateral attack on a zoning decision that has not been properly

appealed through the mechanisms provided by the municipal planning and

development statutes.‛) (emphasis in original); Levy v. Town of St. Albans Zoning Bd.

of Adjustment, 152 Vt. 139, 143 (1989) (‚*section+ 4472 implements a policy of repose,

even where the board’s ruling is ultra vires.‛).                          The Town moved for summary

judgment on the question of whether V.S.A. § 4472 bars this Court from considering this

appeal, arguing that Appellant’s Statement of Questions attacks a permit condition

imposed by an earlier Commission decision from which no timely appeal was taken.

         The Town’s position is understandable, given the inartful drafting of the sole

question in Appellant’s Statement of Questions: ‚Whether the Town of Huntington can

condition Appellant’s subdivision approval on construction of a dry fire hydrant for fire

protection in the general vicinity of Appellant’s land but which provides no benefit to

his property.‛ This question appears on its face to be a challenge to the authority of the

Commission to impose Condition # 7 in its September 9, 2003 decision, even though that

condition makes no mention of a dry fire hydrant. To the extent that Appellant’s appeal

challenges the Town’s authority to impose Condition # 7, the appeal constitutes an

impermissible collateral attack on an un-appealed zoning decision and the Town’s

motion should be granted.3[3]

         However, it is clear from the procedural posture of this case that Appellant is

appealing from the Commission’s denial of his request that it reconsider Condition # 7

title, all interested persons affected shall be bound by that decision or act of that officer, the provisions, or the
decisions of the panel, as the case may be, and shall not thereafter contest, either directly or indirectly, the decision
or act, provision, or decision of the panel in any proceeding, including any proceeding brought to enforce this
chapter.”
3[3]
     Further, to the extent Appellant intends his sole Question to be read more broadly, as a general challenge to the
Town’s general authority to impose a condition that requires an applicant to address a fire protection issue, this
Court would be inclined to deny Applicant’s appeal. We choose not to do so here, as Appellant-Applicant makes
clear in his Memorandum filing of November 21, 2005 that his Question should be read as a more narrow challenge
to the Planning Commission’s decision of September 15, 2004, to not grant his request to consider alternatives to its
prior directive that Appellant submit “a letter of resolution” from Chief Jeffrey, given that no resolution had been
reached.
in light of arguably unforeseen difficulties in fulfilling that condition.             The

Commission’s denial was issued on September 15, 2004.            Mr. Hart appealed that

decision on October 11, 2004, well within the time limit for filing such appeals.

V.R.E.C.P. 5(b). The need for an amendment to the terms of the condition, or even the

elimination of the condition, would be required under some easily imagined

circumstances. For example, if Mr. Jeffrey ceased to volunteer as Town Fire Chief, then

no ‚letter of resolution from Fire Chief Tate Jeffrey‛ would be possible. In such a

situation, a refusal to amend the order imposing that condition would be unreasonable

and grounds for an appeal to this Court.

       In this case, the question before the Court is whether events occurring after the

imposition of Condition # 7 warranted an amendment to the Commission’s 2003

decision. Given that the issue is now before this Court in a de novo appeal, we must

now determine how to respond to Appellant’s request that Condition 7 be revised or

deleted. In doing so, we must first determine whether the condition should be regarded

as a ‚final decision,‛ the review of which may be limited by 24 V.S.A. § 4472, as the

Town now suggests.

       The circumstances here lead us to conclude that we cannot consider Condition

# 7 to be a final condition. Indeed, it appears that the Commission did not consider it to

be a final condition, as the undisputed evidence shows that the Commission continued

to have doubts regarding the condition well past its September 9, 2003, decision. See

Attach. J to Town’s Statement of Undisp. Facts, email of Markley Smith sent April 20,

2004 (‚I think the *hydrant+ situation puts the PC in a difficult position. . . . Either we

drop it as a requirement or request an alternative plan‛); Attach. J to Town’s Statement

of Undisp. Facts, Commission letter to Applicant dated November 17, 2003 (‚At its

meeting on November 11, 2003, the Commission reviewed the copy of the letter written

to you by Fire Chief Tate Jeffrey. After some discussion, they determined that there was

no clear resolution in this letter and the permit is still pending‛); Attach. J to Town’s
Statement of Undisp. Facts, Commission letter to Applicant dated June 17, 2004

(‚However, in order to receive approval on the permit, which will enable you to sell

your land, we need you to resolve the issue of a fire hydrant on your property . . .. We

realize that this has become a difficult and complex problem. In order to explore

alternatives we suggest that a member or members of the planning commission,

possibly accompanied by [the Fire Chief] . . ., visit you and the site in order to view the

situation first hand‛).

       This case affords another example of the clarity of hindsight: the language of

Condition # 7 was undoubtedly well intentioned in its suggestion that the Applicant

resolve the fire protection issue with the Fire Chief, but it does not contain a specific

action to be taken to comply with the Commission’s 2003 approval. Hindsight can

never be called advice, because it is rarely offered when needed. Nonetheless, we note

that the Town could have avoided this situation by ruling Appellant’s application

incomplete and requiring a resolution of the fire protection issue before rendering its

decision on the application.

       We hold that Appellant filed a timely appeal from the Commission’s September

15, 2004, denial of his request to amend or eliminate Condition # 7. The merits of that

request are the proper subject of an appeal to this Court.

       The facts appear in dispute on the question of what steps are appropriate to

address the fire protection issues relevant to Appellant’s project.       This Court will

therefore decide, at the scheduled de novo merits hearing, whether Condition # 7

should be amended in light of the inability of the parties to come to a resolution

regarding fire protection at the site of the proposed PRD.        The parties should be

prepared to present evidence concerning the need for fire protection in connection with

the proposed PRD and surrounding neighborhood, the location of and payment for

such fire protection, and the effect, if any, of Appellant’s sale of the upper pond and

surrounding land.
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that both Appellant’s and the Town’s motions for summary judgment are DENIED.

This matter will go forward as scheduled for a site visit and merits hearing,

commencing at 9:00 AM on Thursday, December 1, 2005.

       The Notice accompanying this Decision schedules a telephone conference for

10:00 AM Tuesday, November 29, 2005, to discuss final coordination for the site visit

and trial.



       Done at Berlin, Vermont, this 23rd day of November, 2005.




                                               _________________________________

                                               Thomas S. Durkin, Environmental Judge
