                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Caleb Temple dba Kirby Mtn Landscaping                   Docket No. 107-8-11 Vtec
(Appeal of Zoning Board of Adjustment Conditional Use Approval)

Title: Appellants’ Motion for Partial Summary Judgment (Filing No. 3)
Filed: April 19, 2012
Filed By: Appellants Alan McNaughton, Helene McNaughton, James Flaherty, and Laura
  Flaherty
Response filed on 5/25/12 by Applicant/Appellee Caleb Temple
Response filed on 5/29/12 by Town of Kirby

Title: Appellee’s Motion for Partial Summary Judgment (Filing No. 5)
Filed: May 25, 2012
Filed By: Applicant/Appellee
Response filed on 6/27/12 by Appellants

 X Granted (each, in part)          X Denied (each, in part)             ___ Other

       Alan McNaughton, Helene McNaughton, James Flaherty, and Laura Flaherty
(Appellants) have appealed a decision by the Town of Kirby Zoning Board of Adjustment
(ZBA) granting conditional use approval to Caleb Temple d/b/a Kirby Mountain Landscaping
(Applicant) to use his property to operate a landscaping business, a sanding and snow plowing
business, and a firewood business. Appellants filed a motion for partial summary judgment
and Applicant responded with a cross motion for partial summary judgment. The Town of
Kirby (Town) filed a memorandum opposing Appellants’ motion.
        A court may only grant summary judgment to a moving party when the party
demonstrates 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 considering cross-motions
for summary judgment, we give each party the benefit of all reasonable doubts and inferences.
City of Burlington v. Fairpoint Commc’ns, 2009 VT 59, ¶ 5, 186 Vt. 332 (citing Toys, Inc. v. F.M.
Burlington Co., 155 Vt. 44, 48 (1990)). We “accept as true the [factual] allegations made in
opposition to [each] motion for summary judgment, so long as they are supported by affidavits
or other evidentiary material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see
V.R.C.P. 56(c). The factual allegations necessary for the Court’s resolution of the motion are to
be presented in statements of material facts included in a party’s filing. See V.R.C.P. 56(c)(1).
We review the pending cross motions with this standard in mind.
      Appellants request summary judgment on Questions 1, 2, 3, 6, and 7 from their
Statement of Questions. Applicant seeks summary judgment on these Questions plus
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)   Pg. 2 of 7.


Questions 12, 13, and 14. We address the Questions in three groups, starting with Questions 1,
2, and 3.
                                               Discussion
I. Questions 1, 2, and 3
         Questions 1, 2, and 3 concern site plan approval. Appellants argue that Applicant’s
proposed project requires site plan approval under the Town of Kirby Zoning Regulations
(Regulations) and that Applicant cannot receive a “conditional use permit” without obtaining
site plan approval first. (Appellants’ Mot. for Partial Summ. J. 7, filed Apr. 19, 2012). Applicant
cites to this Court’s decision in In re Appeal of Miserendino to support his argument. No. 85-5-
99 Vtec (Vt. Envtl. Ct. Aug. 3, 1999) (Wright, J.). The Town agrees that the Regulations require
Applicant’s project to receive site plan approval. The Town goes on to argue, however, that the
ZBA necessarily granted site plan approval when it granted conditional use approval because
all of the considerations required for site plan approval must be addressed during conditional
use review. Applicant appears to agree with the Town’s understanding of conditional use
review and also asserts that he submitted a complete site plan as an attachment to his
application.
        Because our analysis here requires interpretation of the Regulations, we first explain the
standard we apply when engaging in such interpretation. Just as we do when interpreting
legislative statues, for municipal ordinances, we “construe words according to their plain and
ordinary meaning, giving effect to the whole and every part of the ordinance.” In re Appeal of
Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. Id. Because our paramount goal in interpreting an
ordinance is to give effect to the intent of the relevant legislative body, we accept the plain
meaning of the words unless doing so would make a provision ineffective or create irrational
results. Cf. Town of Killington v. State, 172 Vt. 182, 189 (2001) (discussing this rule in the
context of statutory interpretation).
        A. Question 1
        Question 1 asks if Applicant’s proposed project requires site plan approval. Regulations
§ 14.08 explicitly states that it is the Town of Kirby Planning Commission, not the ZBA, that
grants site plan approval and that such approval is necessary for “any use other than Single
Family Dwelling, Two Family Dwellings and Accessory Dwelling Units located within a Single
Family Dwelling.” Because no party asserts that Applicant’s proposed uses falls within the
listed exceptions, we conclude that Applicant’s proposed uses requires site plan approval from
the Planning Commission. We further conclude that nothing in Regulations § 14.08 relating to
site plan approval indicates that the ZBA’s grant of conditional use approval can constitute or
substitute for site plan approval. We have identified no provision in the Regulations which
would mediate the plain language of Regulations § 14.08 stating that the Planning Commission
is the body that engages in site plan review.
       Because we do not have before us the appeal of a decision by the Planning Commission
granting Applicant site plan approval, we cannot address whether Applicant is entitled to such
approval. Thus, we answer Question 1 in the affirmative, GRANTING summary judgment to
Appellants and DENYING summary judgment to Applicant.
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)   Pg. 3 of 7.




        B. Questions 2 and 3
        Questions 2 and 3 are similar, essentially asking whether the ZBA, and presumably, this
Court on appeal, can issue a “permit” to Applicant prior to Applicant obtaining site plan
approval. (Statement of Questions 1, filed Aug. 22, 2011.) The ZBA decision on appeal grants
Applicant a “conditional use permit” but does not direct the Town’s zoning administrator to
issue a zoning permit to Applicant. In re Caleb Temple d/b/a Kirby Mountain Landscaping,
Conditional Use Permit and Order Vacating Cease and Desist, at 8–9 (Town of Kirby Zoning Bd.
of Adjustment Aug. 1, 2011).
        Looking to the Regulations, we have already concluded, that Regulations § 14.08
requires Applicant to obtain site plan approval from the Planning Commission for the uses he
proposes. We further note that, under Regulations § 14.06, which addresses conditional use
approval, the Town’s zoning administrator is prohibited from issuing a “zoning permit” for
allowed conditional uses unless the ZBA grants “conditional use approval.” Regulations
§ 14.02.B concerns the issuance of “zoning permit[s]” by the zoning administrator and § 14.02.A
states that “[n]o development may be commenced within Kirby without a zoning permit,”
development being defined elsewhere in the Regulations to include a change in the use of a
property or the building and structure thereon. See Regulations Appendix A.
       No party is disputing that Applicant’s proposed project constitutes development. Thus,
under the plain language of Regulations § 14.02, Applicant needs a zoning permit in order to
move forward with his plans. According to Regulations § 14.06, Applicant needs conditional
use approval from the ZBA before he can be issued a zoning permit from the Town’s zoning
administrator. He also separately needs site plan approval from the Planning Commission
under § 14.06.
       Part of the confusion here may be that § 14.06 does not explicitly indicate that site plan
approval must be obtained from the Planning Commission before the Town’s zoning
administrator can issue the applicant a zoning permit. Reading the Regulations as a whole,
however, we conclude that this sequence and requirement is implicit. To interpret the
Regulations to allow an applicant to obtain a zoning permit without site plan review where
such review is required under the Regulations would defeat the purpose of site plan review and
seem to threaten the integrity of the Regulations. We will not assume the Town’s legislative
body intended such a result.
        The major disagreement by the parties, however, may simply be due to the terminology
employed by ZBA in its decision. It appears that both Applicant and Appellants believe the
ZBA’s decision either effectively gave a zoning permit to Applicant or allowed the Town’s
zoning administrator to do so. In its decision, the ZBA granted a “conditional use permit” to
Applicant. Caleb Temple, Conditional Use Permit and Order Vacating Cease and Desist, at 8–9
(emphasis added). There is no reference in the Regulations to a conditional use “permit”; there
are only references to conditional use approval and zoning permits. See Regulations §§ 14.02,
14.06. Thus, we understand the ZBA’s decision to grant conditional use approval to Applicant.
Additionally, there is nothing in the ZBA’s decision directing the Town’s zoning administrator
to issue a zoning permit to Applicant nor indicating that the ZBA thought it was, itself, issuing
a zoning permit.
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)   Pg. 4 of 7.


       We ultimately agree with Appellants that the situation here is analogous to the situation
in Appeal of Miserendino, but we ultimately disagree with their assertion that this conclusion
necessitates voiding the ZBA’s conditional use approval. In Appeal of Miserendino this Court
had on appeal before it the Town of Warren zoning board of adjustment’s decision granting
conditional use approval to an applicant as well as the issuance of a zoning permit to applicant
by the municipality’s zoning administrator. No. 85-5-99 Vtec, slip op. at 2, 4. Similar to our
conclusions in the case at hand, in Appeal of Miserendino the Court concluded that the Town of
Warren’s ordinance required the applicant to obtain site plan approval from the planning
commission and conditional use approval from the zoning board of adjustment before the
applicant could receive a zoning permit from the zoning administrator. Id., slip op. at 4.
Following this conclusion, the Court vacated the zoning administrator’s issuance of the zoning
permit, but went on to consider the merits of the conditional use application. Id., slip op. at 4–5.
        We take a similar action here, in response to Questions 2 and 3 from Appellants’
Statement of Questions, as we did in Appeal of Miserendino. The ZBA’s decision, to the extent
that it grants conditional use approval, is not void. We will consider the merits of Applicant’s
conditional use application as challenged by Appellants’ Questions remaining after our ruling
on the pending cross motions. We clarify, however, that the ZBA’s decision does not constitute
or substitute for site plan approval from the Planning Commission’s, nor does it provide
Applicant with a zoning permit for his proposed project. To the extent that the Town’s zoning
administrator has issued a zoning permit to Applicant following the ZBA’s decision granting
conditional use approval, or the Town has treated the ZBA’s decision as the issuance of a
zoning permit, that zoning permit is vacated.

       Because Questions 2 and 3 challenge the validity of the ZBA’s decision, we loosely
characterize our conclusion here as GRANTING summary judgment to Applicant and
DENYING it to Appellants on these Questions. We refrain from answering the Questions with
a yes or no, however, because their reference to a “permit” prevents a simple answer; instead,
we direct the parties to the above paragraph for our detailed response to Questions 2 and 3.
(Statement of Questions 1, filed Aug. 22, 2011.)

II. Questions 6 and 7
        Questions 6 and 7 ask whether one of Applicant’s proposed uses, a firewood business,
falls within the definition of “forestry processing,” “agricultural processing,” or neither. The
ZBA’s decision categorizes the use as agricultural processing, a conditional use in the overlying
zoning district, the Town’s Residential District.
        Appellants seek summary judgment on these Questions, arguing that Applicant’s
proposed use is akin to “forestry processing,” a prohibited use in the Residential District.
Applicant disagrees, arguing that his proposed use falls within agriculture, agricultural process,
or light commercial, all permitted or conditional uses in the Residential District.
        Neither party seeking summary judgment on Questions 6 and 7 has provided the Court
with enough facts in their statements of material facts for us to conclude that there are indeed
no disputed material facts. Therefore, there is no way to determine whether one of the parties is
entitled to judgment as a matter of law based on the undisputed material facts. Although the
parties have provided some helpful commentary in their memoranda, because they did not
incorporate the commentary as specific factual allegations in their respective statements of
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)   Pg. 5 of 7.


undisputed material facts, the parties have failed to provide notice to each other of what specific
facts they are asserting and deprived each other of the opportunity to respond directly with
either assent to or disagreement with specific facts. Because both parties have failed to provide
the Court with the necessary material facts to address Questions 6 and 7, we DENY both parties
summary judgment on these Questions.
III. Questions 12, 13, and 14
        A. Question 12
        Question 12 asks whether the ZBA, in its decision granting conditional use approval,
should have vacated a cease and desist order issued to Applicant. Applicant argues that he is
entitled to summary judgment on this Question because the ZBA decision to vacate the order is
a discretionary ruling and there is no indication that the order went into effect prior to the
ZBA’s hearing on Applicant’s application for conditional use approval.
        The ZBA’s decision on appeal in this matter includes a description of the cease and
desist order in its procedural history section. The decision on appeal indicates that the ZBA
previously sent Applicant an order to show cause why the use to which he was putting his
property did not require a zoning permit. At the subsequent hearing on the order to show
cause the ZBA concluded that Applicant’s property uses required a zoning permit. The
decision on appeal goes on to state the following:
                The ZBA voted unanimously to issue an order to cease and desist to
        Caleb Temple, that he must cease all commercial ventures on the Property or face
        fines and penalties. The ZBA told Mr. Temple verbally at the hearing that if he
        applied for a zoning permit in a timely fashion it might rescind the order to cease
        and desist and waive some or all of the fines.
               Before the ZBA issued a written order to cease and desist, Mr. Temple
        submitted the present zoning application.
Caleb Temple, Conditional Use Permit and Order Vacating Cease and Desist, at 2. The ZBA’s
decision concludes that “[t]he order to cease and desist is hereby vacated and replaced by this
conditional use permit.” Id., at 9.
        Based on the ZBA’s description of its cease and desist order, we understand the order to
fall within the universe of notices of ordinance violations that are addressed in 24 V.S.A.
§ 4451(a) and that a municipality must issue to an out-of-compliance individual before the
municipality can seek penalties from such an individual. According to the ZBA, the order here
gave Applicant an opportunity to cure the zoning violation by submitting a timely zoning
permit application. In the decision on appeal before us, the ZBA either rescinded its decision to
issue the order or vacated the order.
        We view Appellant’s Question 12 to effectively challenge not the original decision of the
ZBA to issue a Cease and Desist Order against Applicant, as that decision was not timely
appealed by either party Rather, Question 12 challenges either the ZBA’s decision to not issue a
final order in the manner described in 24 V.S.A. § 4451(a), or the ZBA’s decision to consider
Applicant’s current application a cure to the alleged violation, thereby vacating the order.
Because the Court cannot determine, from the record before us, whether the ZBA issued a final
order in accordance with 24 V.S.A. § 4451(a), we DENY Applicant summary judgment on
Question 12 and will take up the parties’ arguments at trial.
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)   Pg. 6 of 7.


        B. Question 13
       Question 13 asks whether a ZBA decision to “allow a large commercial building along
the Kirby Ridge Road” violates the Town of Kirby Town Plan. (Statement of Questions 2, filed
Aug. 22, 2011.) Applicant argues that his current application does not include a proposal for a
building so he is entitled to summary judgment on Question 13. Because the record before us
does not indicate that the application before the ZBA, and now before us in this appeal, includes
the proposal for a building, we agree with Applicant and conclude that Question 13 must be
DIMISSED as outside the scope of this appeal.
        C. Question 14
        Question 14 asks “[w]hether the decision of the Zoning Board of Adjustment in
providing for screening violates the objective of the Kirby Town Plan to keep open the
viewshed of the Kirby Ridge Road?” (Statement of Questions 2, filed Aug. 22, 2011.) Applicant
asks for summary judgment on this Question, arguing that the Town Plan only includes
aspirational goals that are not enforceable against Applicant and that cannot prevent Applicant
from obtaining conditional use approval.
       It is the Court’s assumption that Appellants’ Question 14 references the following
condition that the ZBA included in its decision granting conditional use approval:
        Mr. Temple shall finish planting trees to help screen the view from the Flaherty’s
        property into the area around Mr. Temple’s existing shed, and the area where he
        will maintain his log pile. Mr. Temple shall have full discretion [as to] what type
        of trees and shrubs to plant, and where to plant them, but he shall create a barrier
        that softens the visual impact of the working areas of his property from the view
        point of the Flahertys.
Caleb Temple, Conditional Use Permit and Order Vacating Cease and Desist, at 8. The ZBA
imposed this condition in connection with its analysis of the conditional use criterion
addressing the character of the area affected by Applicant’s proposed project. See id., at 4–5.
        While Question 14’s focus on the propriety of the ZBA’s inclusion of this condition is not
within the scope of our review in this de novo appeal, we can consider the propriety of
requiring the condition in our final decision, should we determine conditional use approval is
warranted. See Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (“A de novo trial ‘is one where the
case is heard as though no action whatever has been held prior thereto’”) (quoting In re Poole,
136 Vt. 242, 245 (1978)); In re Torres, 154 Vt. 233, 235 (1990) (stating that, in considering an
application before it, “[t]he 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.”).
Thus, we will exercise our discretion and allow Question 14 to remain, understanding it to ask
whether the Court’s imposition of this condition would violate the Town Plan.
       It is the responsibility of the moving party to demonstrate to the Court that the
undisputed facts entitle the party to judgment as a matter of law. Applicant has not done that
here—he has failed to provide the Court with both the facts necessary for the Court to
understand the context for the challenged condition and a copy of the Town Plan against which
we can consider the challenged condition. While it appears that the challenged condition was
imposed by the ZBA as a way to screen the neighbors’ view of the activities that are at the
centerpiece of Applicant’s application, rather than to block the neighbor’s view of some other
In re Caleb Temple dba Kirby Mtn Landscaping, No. 107-8-11 Vtec (EO on Cross MSJ) (09-5-12)           Pg. 7 of 7.


point, without undisputed facts to explain the condition’s context and the relevant provisions in
the Town Plan, we must DENY Applicant summary judgment on Question 14.
                                               Conclusion
       As discussed in more detail above, our decision here addresses Questions 1, 2, 3, 6, 7,
and 13 from Appellants Statement of Questions. A Discovery Hearing has been scheduled for
this matter on September 18. The parties should be prepared to discuss the Motion for
Protective Order and any other matters that need to be resolved prior to trial.



_________________________________________                                     September 5, 2012
       Thomas G. Walsh, Judge                                                      Date
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Date copies sent: ____________                                            Clerk's Initials: _______
Copies sent to:
 Steven A. Adler, Attorney for Applicant/Appellee Caleb Temple
 Thomas R. Paul, Attorney for Town of Kirby
 Charles D. Hickey, Attorney for Appellants Alan McNaughton, Helene McNaughton, Jeremy Flaherty, and Laura
  Flaherty
