                                     State of Vermont
                          Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Conlon CU Permit                                            Docket No. 2-1-12 Vtec
(Appeal of Planning Commission grant of conditional use approval)

Title: Motion for Summary Judgment (Filing No. 3)
Filed: May 8, 2012
Filed By: Appellants John and Julia Baldwin
Response filed on 5/25/12 by Applicants/Appellees Edward Conlon and Debra Staniscia
Reply filed on 6/1/12 by Appellants
Supplemental reply filed on 6/4/12 by Appellants

___ Granted                   X Denied                     ___ Other

       John and Julia Baldwin (“Appellants”) have appealed a decision by the Town of
Plymouth Planning Commission (“the Commission”) granting conditional use approval to
Edward Conlon and Debra Staniscia (“Applicants”) to subdivide a 13-acre property at 441
Weaver Hill Road in the Town of Plymouth, Vermont and build a 1.5 story building.
Appellants have filed for summary judgment, asking the Court to “dismiss[], revoke[] and
den[y] in its entirety and with prejudice” Applicants’ conditional use application. (Mot. for
Summ. J. 4, filed May 8, 2012). Applicants oppose Appellants’ motion.
       We will grant summary judgment to a moving party (here, Appellants) only if that party
shows that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). In ruling on a summary
judgment motion, the Court is directed to “accept as true the [factual] allegations made in
opposition to the motion for summary judgment,” as long as they are supported by reference to
admissible evidence, and to give the non-moving party (here, Applicants) the benefit of all
reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356;
see V.R.C.P. 56(c).
       In their motion, Appellants argue that Applicants’ conditional use application must be
denied because Applicants’ property is subject to an Act 250 land use permit that restricts
Applicants’ ability to apply for municipal approval to subdivide and place an additional
building on their property. Appellants’ argument addresses the order in which Applicants can
receive the permits they need to develop their property—Appellants assert that the conditions
attached to the Act 250 land use permit, in conjunction with provisions in the Plymouth Zoning
Ordinance (“Ordinance”), prevent Applicant from applying for the conditional use application
without first seeking to amend their Act 250 land use permit. Applicants respond that the Act
250 land use permit does not dictate the order in which they seek the necessary permits.
In re Conlon CU Permit, No. 2-1-12 Vtec (EO on Mot for Summ J) (08-30-12)                  Pg. 2 of 3.


       We do not agree with Appellants’ reading of the documents presented to us and, for the
following reasons, determine that we must DENY Appellants’ motion for summary judgment.
        First, we note that Appellants have not brought to our attention any provision in 10
V.S.A., Chapter 151 (Act 250) that requires a property owner who is subject to an existing Act
250 land use permit, and who wishes to further develop his or her property, to seek any
necessary amendment to the Act 250 land use permit prior to seeking any necessary municipal
land use permits. In fact, Appellants have offered no foundation for a conclusion that the
legislature intended Act 250 to dictate the timeline in which an applicant can seek a municipal
land use permit. See 10 V.S.A. § 6082 (“The permit required under section 6081 of this title
[Title 10] shall not supersede or replace the requirements for a permit of any other state agency
or municipal government.”); Comm. to Save the Bishop’s House, Inc. v. Medical Center Hosp.
of Vt., 137 Vt. 142, (1979) (“We will not presume an intention on the part of the Legislature in
enacting Act 250 to dilute the authority delegated to the municipalities to regulate land use
decisions.”). If a timing requirement exists, it must be located in the particular municipality’s
zoning ordinance.
         Here, Appellants point out that Applicants’ existing Act 250 land use permit includes a
condition that restricts development of Applicants’ property to “ONE single family residence”
unless “specific authority to construct said [other type dwellings] is requested from and
approved by the district office.” (Mot. for Summ. J. 2 & Ex. A, filed May 8, 2012.) Appellants
argue that the following provision in the Ordinance requires Applicants to seek an amendment
to this condition before seeking a conditional use permit from the Commission:
        1.5 Interpretation
        In their interpretation and application, the provisions of this Ordinance shall be
        held to be minimum requirements. Except for [24 V.S.A. § 4413(c)], and where
        this Ordinance specifically provides to the contrary, it is not intended to repeal or
        annul, or in any way impair any regulations or permits previously adopted or
        issued. However, where this Ordinance imposes a greater restriction than the
        Vermont statutes with respect to the use of a structure or land, the provisions of
        this Ordinance shall control.
Ordinance § 1.5.
       We do not agree that Ordinance § 1.5 necessitates that Applicants seek an amendment to
their Act 250 land use permit prior to applying for a conditional use permit from the
Commission. In the context of the pending appeal, § 1.5 simply means that, should this Court
determine that Applicants are entitled to a conditional use permit, the grant of that permit
would not “repeal, or annul, or in any way impair” Applicants’ existing Act 250 land use permit
and the restrictions therein. Applicants offer that they intend to apply for an amendment to
their Act 250 land use permit after they obtain a conditional use permit. It appears to the Court
that Applicants do not appreciate the distinction between obtaining a municipal land use
permit for a project and actually implementing the project, a step that may require more than
one type of permit approval. We interpret the term in the existing Act 250 land use permit to
which Appellants cite to prohibit the latter (implementation), but not the former (obtaining
necessary municipal approval).
In re Conlon CU Permit, No. 2-1-12 Vtec (EO on Mot for Summ J) (08-30-12)                               Pg. 3 of 3.


       Because Appellants have pointed to no provision in the Ordinance which prevents
Applicants from following their chosen timeline, we DENY Appellants’ motion for summary
judgment.




_________________________________________                                       August 30, 2012
       Thomas S. Durkin, Judge                                                      Date
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Date copies sent: ____________                                              Clerk's Initials: _______
Copies sent to:
 Appellants John and Julia Baldwin, pro se
 Martin Nitka, Attorney for Applicants/Appellees Edward Conlon and Debra Staniscia
 Frederick M. Glover, Attorney for Town of Plymouth
