                                  STATE OF VERMONT
                                ENVIRONMENTAL COURT

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In re Sweet Building Permit                   {              Docket No. 19-2-12 Vtec
(Appeal of Peters)                            {
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                                Decision on Multiple Motions

       Appellant Ms. Darlene Peters appeals the decision of the Town of Fletcher, Vermont
Development Review Board (the DRB) to grant Applicants Robert and Linda Sweet a zoning
permit for the placement of a mobile home on Applicants’ property. Appellant is an adjoining
property owner. Currently before the Court are cross motions for summary judgment filed by
Applicants and Appellant. Both parties have filed motions for complete summary judgment.

                                Statement of Undisputed Facts
       For the purpose of putting the pending motions into context, we summarize the facts as
follows; all facts are deemed undisputed for purposes of this motion unless otherwise noted.
1.     The property that is the subject of this appeal is Lot 6B Hemlock Road, off of Town
       Highway 28 in the Rural District of Fletcher, Vermont (the Property).
2.     Single-family homes on previously approved subdivided lots are permitted uses in the
       Rural District of Fletcher, Vermont.
3.     Applicants acquired the entire Lot 6 in 2005 and subsequently subdivided it into Lots 6A
       and 6B. Lot 6A was transferred to Appellant and Applicants retained title to Lot 6B.
4.     The Town of Fletcher received Applicants’ permit application on October 18, 2011.
5.     On or about October 17, 2011, Applicants placed the mobile home on Lot 6B.
6.     The ZA issued a zoning permit for the mobile home on October 19, 2011, which
       Appellant appealed to the DRB.
7.     In a decision dated January 19, 2012, the DRB affirmed the ZA’s decision and granted
       Applicants a permit to place the mobile home on Lot 6B.

                                          Discussion
       Appellants in this case appeal the DRB’s decision to affirm the issuance of zoning permit
#11-22 to Applicants. During the discovery process, Applicants filed a motion for summary
judgment on all 12 of Appellant’s Questions. In response, Appellant withdrew its Question 9
and filed a cross-motion for summary judgment on all of the remaining Questions.       We first

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address Appellant’s Questions 1, 2, 3, and 11, as we find each of these Questions appropriate for
dismissal. We then analyze both parties’ arguments for summary judgment on the remaining
Questions.

I.     Dismissal of Questions 1, 2, 3, and 11
       a.      Questions 1, 2, and 3
       In this appeal, Appellant challenges the issuance of zoning permit #11-22. However, in
her Statement of Questions, Appellant also raises the issue of whether the ZA and DRB acted
within their authority by not commencing an enforcement action against Applicants.
Appellant’s Questions 1, 2, and 3 are as follows:
       1. Whether placement of a mobile home on parcel 6B, Hemlock Road, Fletcher,
          Vermont without a zoning permit violated the Town of Fletcher Zoning
          Bylaw, including Sections 1.3(A) and 6.4(A)(2), and 24 V.S.A. § 4449(a)(1).
       2. Whether placement of mobile home on parcel 6B, Hemlock Road, Fletcher,
          Vermont prior to the effective date of zoning permit #11-22 violates Town of
          Fletcher Zoning Bylaw Sections, including 6.4(F)(2), and 24 V.S.A. §
          4449(a)(3).
       3. Whether the Town Zoning Administrator’s and the Town Development
          Review Board’s (DRB) refusal to enforce the zoning ordinance and state law
          was permissible under Fletcher Zoning Bylaw, including Sections 6.1(B),
          6.2(C), and 6.8, and 24 V.S.A. §[§] 4448(a) and 4452.
(Appellant’s Statement of Questions at 1, filed March 7, 2012.)
       Under 24 V.S.A. § 4472(a), however, a interested person seeking to appeal a municipal
panel’s action or failure to act must bring such an appeal to the appropriate municipal panel
before appealing the issue to this Court. Appellant in this case has provided no evidence that
she raised the DRB’s alleged failure to enforce the Bylaw with an appropriate municipal panel.
Furthermore, the only decision below that Appellant identifies in her Notice of Appeal in this
case is the DRB’s decision issued on January 19, 2012, in which the DRB affirmed the grant of
zoning permit #11-22.     The DRB decision, filed with the Court as an exhibit attached to
Appellant’s motion for summary judgment, makes no reference to any request for or decision
regarding an enforcement action.
       Accordingly, we DISMISS Appellant’s Questions 1, 2, and 3 as outside the scope of this
appeal. Both parties’ motions for summary judgment on Appellant’s Questions 1, 2, and 3 are
rendered moot.



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         b.     Question 11
         Appellant’s Question 11 asks “[w]hether the application for zoning permit #11-22 for
placement of a mobile home on parcel 6b . . . contains material misrepresentations, including
material omissions, in violation of Fletcher Zoning Bylaw 6.4(G)(3) and 24 V.S.A. § 4470a.” The
provisions cited by Appellant simply state that permit applications can be denied if the
application contains material misrepresentations. Bylaw 6.4(G)(3) also states that a permit can
be voided or the applicant must at least reapply for a permit if the original permit was granted
based on material misrepresentations. Thus, we read Appellant’s Question 11 to ask whether
Applicant made any material misrepresentations in the application it submitted to this Court.
The statutory provision cited by Appellant directs this Court to weigh all evidence submitted
and consider whether either party has made a material misrepresentation. 24 V.S.A. § 4470a.
We are charged with the responsibility of assessing the credibility and weight to be afforded
any evidence presented in the upcoming de novo hearing. See 10 V.S.A. § 8504(h); 24 V.S.A. §
4470a.    Therefore, to the extent that Question 11 challenges the credibility of Applicants'
presentation of evidence, the Question is unnecessarily duplicative of our procedural process in
a de novo proceeding. See In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 3 (Vt. Envtl. Ct.
Aug. 30, 2012) (Durkin, J) (dismissing a question because it was unnecessarily duplicative of the
Court’s process in a de novo trial).
         Accordingly, we DISMISS Appellant’s Question 11 as unnecessarily duplicative of our
procedural process in a de novo proceeding and both parties’ motions for summary judgment
on Appellant’s Question 11 are rendered moot.

II.      Summary Judgment
         V.R.C.P. 56 sets out the standard for deciding motions for summary judgment, which is
expounded upon in case law. When considering cross-motions for summary judgment, we look
at each motion individually and give the party opposing a motion 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 also accept as true all factual
allegations made in opposition to a motion for summary judgment so long as they are
supported by “specific citations to particular parts of materials in the record.”           V.R.C.P.
56(c)(1)(A). With this standard in mind, we now address the motions for summary judgment as
they relate to the Appellant’s remaining Questions.


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       a.      Question 4
       Appellant’s Question 4 asks whether the mobile home, currently placed but not affixed
to the ground on Lot 6B, should be moved “until and unless a zoning permit is properly issued
and becomes effective.”       (Appellant’s Statement of Questions at 1, filed Mar. 7, 2012).
Essentially, Appellant’s Question 4 is asking whether zoning permit #11-22 has been stayed.
When a permit is appealed to the Environmental Division, the permit takes effect either 15 days
after the appeal is filed or when the Court renders a decision on a motion for stay. 24 V.S.A.
§ 4449(a)(3). If the Court issues a stay, then the permit is suspended and no actions may be
taken pursuant to the suspended permit. 10 V.S.A. § 8504(f)(1) states that a stay is automatically
issued in only two instances: (1) an act or decision involving stream alteration permits or
shoreline encroachment permits issued by the secretary and (2) the denial of interested person
status by a board of adjustment, planning commission, or development review board. The
pending appeal does not concern either of these scenarios. Thus, a stay did not automatically
issue upon commencement of this appeal. It is still within the Court’s discretion, however, to
grant a stay on its own motion or upon a party’s motion. 10 V.S.A. § 8504(f)(2).
       In this case, Appellant did not file a motion for stay, nor did the Court issue a stay on its
own motion. Therefore, the permit has not been stayed and took effect 15 days after Appellant
filed her Notice of Appeal on February 22, 2012. We note however, that Applicants exercise the
rights granted them by the permit at their own risk. Should the Court deny their permit
application in this appeal, the actions taken pursuant to the permit will be deemed a violation of
the Bylaws. See In re Irons, No. 94-6-04 Vtec, slip op. at 1 (Vt. Envtl. Ct. July 6, 2004) (Wright, J.)
(cautioning that in a permit application appeal, the permit is “in effect,” but applicant proceeds
with the risk that the permit may be altered in the final decision), aff’d 178 Vt. 648 (2005).
       Accordingly, we GRANT Applicants’ motion for summary judgment and DENY
Appellant’s motion for summary judgment on Question 4 and find that the mobile home does
not need to be moved until the Court renders a final decision on the permit application.

       b.      Question 5
       Appellant’s Question 5 asks whether a permit can be granted “without ensuring that the
private road meets town road standards pursuant to Fletcher Zoning Bylaw Section 3.1(C).”
(Appellant’s Statement of Questions at 1, filed Mar. 7, 2012).            Appellants challenge the
sufficiency of the evidence presented to and relied upon by the DRB regarding compliance with


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town road standards. This is, however, a de novo review. We cannot consider the evidence
presented to the DRB, because we must hear this case as though there had been no proceeding
below. V.R.E.C.P. 5(g); see In re Poole, 136 Vt. 242, 245 (1978) (defining a de novo trial as “one
where the case is heard as though no action whatever had been held prior thereto”).
       Thus, we read Appellant’s Question 5 to challenge the sufficiency of the evidence
presented to this Court regarding compliance with town road standards. The only evidence
presented to this Court regarding compliance with town road standards is the undisputed claim
that Applicants received an access permit from the Town of Fletcher in 2006. Because we give
the benefit of all reasonable doubt to the nonmoving party, however, and because there is some
debate about the sufficiency of the evidence presented on this Question, we cannot decide
Question 5 on summary judgment. See Fairpoint Commc’ns, 2009 VT 59, at ¶ 5. Both parties
are encouraged to present evidence or challenge the sufficiency of evidence on this point at the
merits hearing.
       Accordingly, we DENY both parties’ motions for summary judgment on Question 5.

       c.      Question 6
       Appellant’s Question 6 asks “[w]hether the site plan included with the application for
zoning permit #11-22 is adequate for issuance of a zoning permit under Fletcher Zoning Bylaw
Section 6.4(B)(1).” (Appellant’s Statement of Questions 2, filed Mar. 7, 2012). Because this is a
de novo trial, we cannot consider the evidence submitted to the tribunal below. V.R.E.C.P. 5(g);
see Poole, 136 Vt. at 245.     Therefore, we read this Question to ask whether the site plan
submitted to this Court is sufficient. Although Applicants feel that the site plan that they
submitted to this Court is sufficient, Appellant is equally convinced that the site plan as
submitted is deficient.1 Appellant presents only one argument that actually pertains to the site
plan submitted to this Court. Appellant argues that the relevant site plan is deficient because it
fails to include “material information regarding the presence of a stream and wetland on the
lot.” (Appellant’s Mot. for Summ. J. at 12, filed Oct. 3, 2012). The presence of wetlands and a
stream on the lot are matters that are in dispute. A final determination on their presence or lack
thereof is necessary in order to decide whether the site plan is adequate.




1 We also note that most of the arguments presented in both parties’ memoranda concern the site plan
that was submitted to the DRB and not the one submitted to this Court.

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       Because we cannot grant summary judgment if there is a genuine dispute of material
fact, we DENY both parties’ motions for summary judgment on Appellant’ Question 6. Both
parties may present further evidence on the adequacy of the site plan at the merits hearing.

       d.      Question 7
       Appellant’s Question 7 asks “[w]hether the mobile home is currently placed in the
permitted area as shown on zoning permit 11-22, and whether the lot and structure, as currently
placed or permitted, meet the lot and setback requirements for the rural residential/agricultural
district in Fletcher Zoning Bylaw Table 2.4-2.” (Appellant’s Statement of Questions at 2, filed
Mar. 7, 2012). Because Applicants concede that the mobile home is not currently in its final
location, we GRANT partial summary judgment on Question 7 in favor of Appellant and find
that the mobile home is not currently in the location depicted in the permit (or in the site plan
submitted to this Court).
       Based on this holding, we address the remainder of Appellant’s Question 7 only as it
relates to the proposed final location of the mobile home. Both Applicants and Appellant agree
that if the mobile home is placed on the Property in accordance with the site plan attached to
Applicants’ motion for summary judgment, it would comply with the zoning requirements in
the Rural Residential/Agricultural District. (Appellant’s Statement of Undisputed Material
Facts ¶ 11, filed Oct. 3, 2012). Although we are encouraged by the parties’ ability to reach an
agreement on this issue, we cannot decide this question on summary judgment. Whether or not
the proposed location meets all applicable setback requirements depends on a determination
regarding the presence or absence of wetlands or a stream on the property. The existence of
wetlands or a stream on the property will have a direct impact on the permissible location of the
mobile home.
       Because there is a genuine dispute regarding the presence and locations of those features
on the property, we cannot answer Appellant’s Question 7 on summary judgment.
Accordingly, we DENY both parties’ motions for summary judgment on the remainder of
Appellant’s Question 7.

       e.      Question 8
       Appellant’s Question 8 asks
       [w]hether the placement of the mobile home at the bottom of a gully near a
       stream, without any foundation or supporting materials, and without evidence
       of drainage patterns from the land or the locations of streams and wetlands,

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       meets the Performance Standards in the Fletcher Zoning Bylaw Section
       3.12(A)(3), which forbids the discharge of harmful wastes into any watercourse,
       wetland, or aquifer, and/or satisfies Fletcher Zoning Bylaw Section 3.7(B), which
       requires 25-foot setbacks from streams, ponds, and wetlands.
(Appellant’s Statement of Questions at 2, filed Mar. 7, 2012). Although this Question seems to
be almost hypothetical in nature, we read it as questioning whether the proposed final site plan
will meet the requirements of Bylaw Sections 3.12(A)(3) and 3.7(B). Whether or not Applicants’
proposed plan conforms to these provisions requires a final determination on the presence or
absence of a stream and/or wetland on Lot 6B. Appellant contends that a wetland and stream
exist on the property. In support of her contention, Appellant submitted the affidavit of a
consulting ecologist, Jeffrey Parsons. The affiant states that he conducted a survey of Lot 6B
from the shared boundary between Lots 6A and 6B but did not enter onto Lot 6B. Based on this
limited survey, he claims that there are likely a stream and a wetland on the property. Absent
any information regarding the acceptability of such a survey method in the relevant scientific
community, we do not find the affidavit to be determinative.          Moreover, Applicant has
submitted evidence that no wetland has been marked or mapped on the property.
       Because we cannot weigh evidence on summary judgment, if both parties submit
evidence in accordance with V.R.C.P. 56(c)(1)(A), we consider the matter to be genuinely
disputed. Estate of Alden v. Dee, 2011 VT 64, ¶16, 190 Vt. 401. Furthermore, we must give the
benefit of all reasonable doubt to the non-moving party. Fairpoint Commc’ns, 2009 VT 59, at ¶
5. Both parties have made some showing regarding the presence or absence of wetlands and
streams on the property; therefore, there is a genuine dispute regarding a material fact. Thus,
we cannot grant summary judgment to either party.
       Accordingly, we DENY both parties’ motions for summary judgment on the issue of
whether the project meets Bylaw Sections 3.12(A)(3) and 3.7(B), a question we will decide after a
final determination regarding the existence of a wetland or stream based on evidence presented
at the merits hearing.

       f.         Question 9
       Appellant’s Question 9 asked whether the proposed project required vegetative
screening to comply with the Bylaw. Appellant has withdrawn Question 9 from consideration
in this appeal.




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       g.      Question 10
       Appellant’s Question 10 asks
       [w]hether a zoning permit for the mobile home on Lot 6B, Hemlock Road,
       Fletcher, Vermont may be granted under Bylaw Sections 6.4(B)(1) and (5) where
       the applicant did not complete zoning form #11-22 and where the application
       does not contain necessary information, including, but not limited to: (a) parcel
       location information, (b) parcel owner information, (c) the date the application
       was filed, (d) a description of the permit, (e) the parcel size, (f) information on the
       current use of the parcel, (g) construction dates, (h) information on sewers and
       water supply, (i) information regarding road access, (j) setback information, (k) a
       floor plan, or (l) an adequate site plan.
(Appellant’s Statement of Questions at 2-3, filed Mar. 7, 2012). As we noted above, because this
is a de novo proceeding, we may only consider this Question as it applies to the materials
submitted to this Court. V.R.E.C.P. 5(g); see Poole, 136 Vt. at 245. Therefore, we read this
Question as a challenge to the sufficiency and completeness of the application materials
submitted to this Court.
       Two issues prevent us from deciding this Question on summary judgment.                    First,
neither party has presented any evidence in accordance with V.R.C.P. 56(c) regarding the
sufficiency of the application before this Court. Although the parties in this case dispute
whether the application is complete, neither party has supported its claim with citations to
materials in the record.    See V.R.C.P. 56(c).       Second, discovery may not be complete and
evidence is not yet closed. Absent a sufficient challenge at the summary judgment stage of the
proceeding, Applicants are entitled to present further evidence on all issues pertinent to their
application at the merits hearing. Therefore, the permit application cannot be deemed deficient
prior to the close of evidence, and we consider this matter to be genuinely disputed. The parties
may address this issue at the merits hearing.
       Accordingly, we DENY both parties’ motions for summary judgment on Appellant’s
Question 10.

       h.      Question 12
       Appellant’s Question 12 asks whether an award of attorney’s fees and costs is
appropriate pursuant to 24 V.S.A. § 4470a “due to the material misrepresentations and
omissions in the application for zoning permit #11-22.” (Appellant’s Statement of Questions 2,
filed Mar. 7, 2012). Although an award of attorney’s fees and costs is permissible under 24
V.S.A. § 4470a, such award is only appropriate after notice and hearing on the issue and only in

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the event that the Court determines that the application contains material misrepresentations.
In this case, no such determination has been made. Furthermore, even if we do determine that
the application contained material misrepresentations, Applicant would still be entitled to a
hearing on an award of attorney’s fees and costs to Appellant. Therefore, we cannot determine
whether an award of attorney’s fees and costs is appropriate at this stage.
       Accordingly, we DENY both parties’ motions for summary judgment on Appellant’s
Question 12.

                                           Conclusion
       For the reasons more fully detailed above, we GRANT Applicants’ motion for summary
judgment, and we DENY Appellant’s motion for summary judgment on Appellant’s Question
4, we GRANT partial summary judgment to Applicants on Appellant’s Question 7, and we
DENY both parties’ motions for summary judgment on Appellant’s Questions 5, 6, 8, 10, and
12, as well as the remaining portion of Appellant’s Question 7. We also DISMISS Appellant’s
Questions 1, 2, and 3, as they are outside the scope of this appeal, and Appellant’s Question 11,
as it is unnecessarily duplicative of the Court’s review process. Because Appellant withdrew
her Question 9, the Questions remaining for review in our merits hearing in this appeal are
Questions 5, 6, 8, 10, 12, and the remainder of Question 7. Please see the enclosed notice of
hearing regarding Appellant’s motion to compel.


       Done at Berlin, Vermont this 12th day of December, 2012.




                                                        Thomas G. Walsh,
                                                        Environmental Judge




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