                                        STATE OF VERMONT
SUPERIOR COURT                                                        ENVIRONMENTAL DIVISION
Vermont Unit                                                            Docket No. 123-9-13 Vtec


Moore 3 Lot Subdivision                                            DECISION ON MOTION



            Decision on Motion to Dismiss and Cross-Motions for Summary Judgment
        James and Mia Moore (the Moores) seek to subdivide the 6.27-acre parcel they own at
18 Leap Frog Hollow Road in the City of Montpelier, Vermont. The Moores’ subdivision
application was approved by the Montpelier Development Review Board (the DRB) by written
decision dated August 19, 2013. A neighboring property owner, James Nagle, timely appealed
that decision to this Court. The Moores, through their attorney Daniel Burke, Esq., move to
dismiss certain of Mr. Nagle’s questions on appeal and for summary judgment on the remaining
questions contained in Mr. Nagle’s Amended Statement of Questions. Mr. Nagle, representing
himself, cross-moves seeking “dismissal of the application” and a remand to the DRB for further
proceedings.1
                                             Factual Background
        For the sole purpose of putting the pending motions into context, we recite the
following facts which we understand to be undisputed unless otherwise noted:
1.      James and Mia Moore purchased a 6.27-acre parcel of land on Leap Frog Hollow Road in
        the City of Montpelier in May 2012.
2.      The 6.27-acre parcel was one part of a larger parcel owned by Mr. Nagle. Mr. Nagle
        subdivided this larger parcel into three lots; Lot 1 was and still is owned by Mr. Nagle;
        Lot 2 was owned by the Moores’ predecessor in interest, Dejung Gewissler; and Lot 3
        was then and still is owned by Na An.




1
  While titled a motion to dismiss, Mr. Nagle’s motion includes a statement of undisputed material facts and seeks
judgment in his favor as a matter of law. As such, we treat it as a motion for summary judgment under Vermont
Rule of Civil Procedure 56.
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3.    Mr. Gewissler further subdivided Lot 2 into Lots A and B, with Lot A being 1.04 acres and
      Lot B being 6.27 acres. Mr. Gewissler conveyed Lot B to the Moores and that is the
      subject lot they seek to further subdivide.
4.    On June 18, 2013, the Moores submitted an application for a subdivision permit with
      the City of Montpelier Development Review Board (the DRB). The application is to
      subdivide Lot B into three lots: a new Lot B of 2.96 acres, Lot B1 of 2.04 acres, and Lot
      B2 of 1.27 acres. The plans accompanying the application depict locations of single-
      family residences, garages, driveways, wells, and water and sewer lines. The Moores did
      not, however, apply for any development or construction permits other than approval
      to subdivide their lot.
5.    The plans also depict the grade of the land, a pond, several streams, and an unused
      spring.
6.    The plans also depict Leap Frog Hollow which undisputedly provides access to the
      subject parcel. An easement was conveyed to Mr. Gewissler, his heirs and assigns, for
      use of Leap Frog Hollow for access and utilities at the time of Mr. Nagle’s initial
      subdivision. The parties do not dispute the location of the easement, but Mr. Nagle
      argues that the scope of the easement is limited to serving only four houses.
7.    The DRB scheduled a hearing on the application for July 15, 2013. Notice of the hearing
      was posted at two locations within the City Hall Building, in a public location at
      Montpelier High School, and at the subject property. Notice of the hearing was also
      published in the Barre-Montpelier Times Argus newspaper on or about June 27, 2013.
      Mr. Nagle, as an abutting land owner, received actual written notice of the hearing on
      July 2, 2013.
8.    The DRB held the hearing as scheduled. Mr. Nagle appeared at the hearing and
      provided written opposition to the application.
9.    The DRB approved the application with conditions by written decision dated August 19,
      2013.
10.   Prior to the subdivision application, the Moores entered into purchase and sale
      agreements with two sets of prospective buyers for the proposed lots. The agreements



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       were contingent on the subdivision approval from the City and the Moores had no
       obligation to sell until the subdivision was approved.
11.    The Moores’ parcel is accessed through a shared right-of-way that serves the other
       three lots (Lots 1 and 3 from the Nagle subdivision and Lot A from the Gewissler
       subdivision).
                                               Discussion
       Now pending before the Court are three motions: first, the Moores move to dismiss
certain of Mr. Nagle’s questions on jurisdictional grounds; second, the Moores move for
summary judgment on the remaining questions which they do not seek to have dismissed;
finally, Mr. Nagle also moves for judgment as a matter of law that the Moores failed to comply
with requirements of the City of Montpelier Zoning and Subdivision Regulations (the
Regulations) and requesting that the Court remand the application for further proceedings
before the DRB.
Standard of Review
       The Moores move to dismiss a number of Mr. Nagle’s Questions as outside the Court’s
subject matter jurisdiction. Vermont Rule of Civil Procedure 12(b)(1) governs motions to
dismiss for lack of subject matter jurisdiction. In reviewing such motions, we accept as true all
uncontroverted factual allegations and construe them in a light most favorable to the
nonmoving party (here, Mr. Nagle). Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245.
       On all Questions for which the Moores do not seek dismissal they seek summary
judgment in their favor. Mr. Nagle also seeks judgment in his favor and we review his motion
as a cross-motion for summary judgment. Motions for summary judgment are governed by
V.R.C.P. 56. We will only grant summary judgment if a moving 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). When considering cross-motions for summary judgment, the court looks
at each motion individually and gives the opposing party the benefit of all reasonable doubts
and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332.
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). We note that neither Mr. Nagle nor the Moores

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responded to the other party’s statement of facts indicating whether the facts were disputed or
not as required by Rule 56. The Court will therefore only treat as disputed those facts that are
contradicted by the other party’s Statement of Facts.

Questions 1 and 2 – Notice to Adjoining Landowner
        Questions 1 and 2 of Mr. Nagle’s Statement of Questions relate to sufficiency of the
notice of the hearing on the application and state as follows:
        1. Pursuant to Article 206(A)(3) of the City of Montpelier Zoning & Subdivision
           Regulations, did the appellees/applicants notify all adjoining landowners of
           the subject property at the time of the original Montpelier Development
           Review Board (DRB) hearing?
        2. Pursuant to Article 206(C) of the City of Montpelier Zoning & Subdivision
           Regulations, does inadequate notice require this action be remanded to the
           DRB to provide new posting and notice, hold a new hearing, and take a new
           action?
        The Regulations require that notice be published in a newspaper of general publication
and public posting in three or more public places not less than 15 days prior to the date of the
hearing. Regulations § 206.A(1)–(2). It is not disputed that these requirements were met with
the Moores’ application. The Regulations also require that not less than 15 days before the
hearing written notice be provided to the applicant and to any record owners of property
adjoining the property subject to development. Regulations § 206.A(3). Mr. Nagle alleges that
certain adjoining landowners did not receive written notice of the DRB hearing although he
admits that he, himself, did receive written notice, albeit only 13 days prior to the hearing. It is
undisputed that Mr. Nagle appeared before the DRB and submitted written opposition to the
Moores’ subdivision application. Mr. Nagle primarily argues that the failure to provide written
notice to other adjoining property owners requires this Court to remand the proceedings so
that the DRB can hold a new, properly noticed, hearing. Mr. Nagle does not have standing to
raise this claim.
        This Court’s jurisdiction is limited to “actual cases or controversies.” Parker v. Town of
Milton, 169 Vt. 74, 76–77 (1998). Whether a case or controversy exists turns partially on
whether the party bringing a claim has standing to do so. Id. at 77. Standing is a “necessary
component to the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 15, ¶ 15, 183
Vt. 235. When parties lack standing, courts lack the authority to render decisions. In order to

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have standing a party must have suffered the injury alleged. “[A] general prohibition on a
litigant’s raising another person’s legal right” is “one of the fundamental principles underlying
the standing requirement . . . .” Id. at ¶ 21. Both the Legislature and the drafters of the
Montpelier Zoning and Subdivision Regulations provided that certain classes of people are
entitled to notice of hearings on land use applications. 24 V.S.A. § 4464; Regulations § 206.A.
Mr. Nagle is entitled to assert his own right to notice but he does not have standing to raise the
rights of others.
       Mr. Nagle also alleges that he only received notice 13 days in advance of the hearing
rather than the required 15 days. It is undisputed, however, that Mr. Nagle appeared before
the DRB and therefore suffered no injury. Finally, the Regulations specifically state that “[n]o
defect in the form or substance of any [notice requirements] shall invalidate the action of the
Development Review Board where reasonable efforts are made to provide adequate posting
and notice.” Regulations § 206(C). Viewing the facts presented by Mr. Nagle as true and
considering them in the light most favorable to him, the Moores made reasonable efforts to
provide adequate notice. Thus, we GRANT the Moores’ motion for summary judgment with
regard to questions 1 and 2 and those questions are DISMISSED.

Questions 3 and 4 – Offer to Sell Prior to Subdivision Approval
       Mr. Nagle’s Questions 3 and 4 ask:
       3. Pursuant to Article 203(C) of the City of Montpelier Zoning & Subdivision
          Regulations, final subdivision approval must be obtained prior to offer of sale
          of any lot.
              a. Is    the     appellant     adversely    prejudiced     because      the
                  appellees/applicants have entered into one or more purchase/sale
                  contracts for the subdivision lots that are the subject of this appeal,
                  before a permit for such subdivision was issued?
              b. Does such adverse prejudice enjoin the appellees/appellants [sic]
                  from enforcing the DRB Notice of Decision?
       4. Does the Violation of Article 203(C) of the City of Montpelier Zoning &
          Subdivision Regulations by the appellees/applicants make the DRB Notice of
          Decision null and void or, in the alternative, require the this [sic] action to be
          remanded to the DRB to hold a new hearing and take a new action?
       It is undisputed that the Moores entered into purchase and sale agreements for the
proposed lots prior to the final subdivision approval. Section 203.C of the Regulations states:
“Division of land into two or more lots requires subdivision approval issued according to the
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provisions of Article 4. Final subdivision approval must be obtained prior to offer of sale of any
lot.” Article 4, however, contains no requirement in the review of subdivision applications
related to offering the proposed lots for sale. Thus, in our de novo review of the Moores’
subdivision application, the violation of § 203.C is irrelevant, as it is not grounds for denial of
the application. An alleged violation of the Regulations, unrelated to the standards governing
the application before us (here, Article 4), is not grounds for denial of the application but could
be the subject of an action by the City against the alleged violator. Thus, even assuming that
the Moores violated § 203.C, because Mr. Nagle is not entitled to the relief he seeks we GRANT
the Moores’ motion for summary judgment on Questions 3 and 4 and those questions are
DISMISSED.

Questions 5 and 6 – Materials Submitted to the DRB
       Questions 5 and 6 of Mr. Nagle’s Statement of Questions each relate to the adequacy or
accuracy of materials submitted to the DRB. Question 5 asks whether the DRB “lack[ed] subject
matter jurisdiction to hear the appellees/applicants subdivision application,” whether as a
result the DRB was precluded from deciding the application, and whether the DRB decision
approving the application is therefore “null and void,” if the plans submitted to the DRB failed
to accurately depict and describe easements or rights-of-way. Question 6 asks the same
questions related to an alleged failure to fully or accurately depict natural resources on the
plans submitted to the DRB.
       Pursuant to the Vermont Rules for Environmental Court Proceedings, an interested
person appealing a municipal panel decision is entitled to a de novo trial in this Court. V.R.E.C.P
5(g). “A de novo trial ‘is one where the case is heard as though no action whatever has been
held prior thereto.’” Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (quoting In re Poole,
136 Vt. 242, 245 (1978)). This Court does not consider any previous decisions or proceedings
below; “rather, we review the application anew as to the specific issues raised in the statement
of questions.” In re Whiteyville Props. LLC, No. 179-12-11 Vtec, slip op. at 1 (Vt. Super. Ct.
Envtl. Div. Dec. 13, 2012) (Durkin, J.). We will therefore not review the accuracy or adequacy of
the materials submitted to the DRB. Alleged shortcomings in those materials are not grounds
for denial of the permit application. All materials submitted to this Court in this de novo
proceeding must be complete and accurate and comply with the requirements of the

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Regulations. As Questions 5 and 6 relate entirely to the materials submitted to the DRB, they
are not relevant and are outside the scope of this appeal. We therefore GRANT the Moores’
motion for summary judgment with regard to Questions 5 and 6 and those Questions are
DISMISSED.

Questions 7–11 – Easement/Right of Way Providing Access to the Subdivision
        Question 7–11 of Mr. Nagle’s Statement of Questions all relate to the easement or right
of way that provides access to the subject parcel. Questions 7 and 8 ask: “[i]f there are material
and significant questions about an easement or right of way to the subject parcel at the time of
the original DRB hearing,” are the Moores required to either “cure such questions prior to filing
their subdivision application” or “prior to completing the DRB subdivision process?”
        These two Questions also relate entirely to the proceeding below and are therefore not
germane to this de novo proceeding.          More importantly, however, questions related to
interpretation or adjudication of private property rights are outside this Court’s subject matter
jurisdiction.
        Municipal regulations often require an applicant to have a sufficient ownership interest
or legal access in order to develop a property. In such cases this Court must ensure compliance
with the regulations but may not adjudicate private property rights.           See In re Britting
Wastewater/Water Supply Permit, No. 259-11-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. Apr. 7, 2008)
(Wright, J.). We have, therefore, only required an applicant to “satisf[y] a threshold burden
that it has authority to use the property it seeks to develop” and will not “adjudicate possible
real property disputes . . . .” In re Town of Charlotte Recreation Trail, No. 9-5-08 Vtec, slip op.
at 13–14 (Vt. Super. Ct. Envtl. Div. Feb. 14, 2011) (Durkin, J.). Questions 7 and 8 raise the type
of real property dispute that is outside our jurisdiction.
        Question 9 asks “[h]ow long is the easement or right of way on Leap Frog Hollow that
was conveyed by the deed for the subject property?” Question 10 asks “[d]oes the deed for the
conveyance of the right of way on Leap Frog Hollow limit the right of way to one house site for
the subject property?” Question 11 asks “[i]s the increase of house sites from one to three
house sites for the subject property a substantial, material change from the definition of the
right of way contained in the deed?” These three questions, as with Questions 7 and 8, are


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about a real property dispute over an alleged limitation on the scope of the easement or right
of way for the subject parcel.
       The Moores and Mr. Nagle all submit documents which undisputedly show the
existence of an easement for driveway and utility purposes serving the lot the Moores seek to
subdivide. That easement was granted to the Moores’ predecessor in interest, Mr. Gewissler
and his heirs and assigns. This shared easement is depicted in the same location in the plans
submitted in the two prior approved subdivisions by Mr. Nagle and Mr. Gewissler. On the
undisputed facts before the Court, the Moores have met the initial burden of establishing a
legal access to the property. To the extent that Mr. Nagle argues that the grant of that
easement should be read to contain limitations on its use, he asks this Court to adjudicate
private property rights and settle a real property dispute, something we cannot do. For these
reasons, the Moores’ motion to dismiss or for summary judgment on Questions 7–11 of Mr.
Nagle’s Statement of Questions is GRANTED and those questions are DISMISSED.
Question 12 – Natural Resources on the Site
       Mr. Nagle’s Question 12 asks: “Have appellees/applicants accurately represented the
streams, watercourses and other natural features on their survey for the proposed
development?”
       While Question 6 was related entirely to the plans submitted to the DRB, this question
asks whether the application on appeal complies with the requirements of the Regulations.
Table 401 of the Regulations established submission requirements for an application for
subdivision or planned development review. It is broken down into Sketch Plan, Preliminary
Plan, and Final Plan sections. For a subdivision application, the preliminary plan must:
       delineate significant natural resources; wetlands; shoreline management areas;
       water courses; rare, threatened or endangered plant and animal species;
       geological sites; historic sites; scenic roads; agricultural lands; open spaces; view
       sheds; streams; bodies of water; woodlands; flood hazard areas; slopes with
       gradients greater than 20%; south-facing slopes; significant trees; significant
       wildlife habitats; wellhead protection areas; and ridge lines.
This is not additionally required at the Final Plan review stage, but every subdivision must go
through both preliminary and final plan review. Mr. Nagle’s Question 12, unlike Question 6,
can be read to ask whether the Moores have included such delineation in the application
materials now before this Court.

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       The Moores move for summary judgment arguing that because the delineation of
environmental features is not part of the final plan review and it is the final subdivision
approval that is on appeal, the question does not raise a legal issue relevant to the pending
appeal. This, however, ignores the fact that the decision approving the Moores’ subdivision
was a joint decision for both Preliminary and Final subdivision review and approval. “The 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.” In re Torres, 154 Vt. 233, 235
(1990). Thus, an issue that was before the DRB and that is properly raised in the Statement of
Questions is within the scope of this Court’s jurisdiction.      In considering a subdivision
application, the Regulations direct that the DRB, and therefore this Court on appeal, “may
consider and impose appropriate conditions and safeguards with respect to the subdivision’s or
planned development‘s conformance with the general development standards of Article 7.”
Regulations § 407.E. Section 715(A) of Article 7 of the Regulations requires consideration of
impacts on natural resources. To the extent that the subdivision layout could impact these
natural resources, the proper delineation and description of the resources is material to
determining whether the application should be approved. Because there is a material dispute
of fact regarding what environmental resources exist on the site and whether the Moores’
application accurately delineates those resources, we DENY the Moores’ motion for summary
judgment as to Question 12.
       In his cross-motion, Mr. Nagle asks that the Court remand the matter to the DRB for
further proceedings. We conclude that this matter does not need to be remanded. As noted
above, the scope of the Court’s jurisdiction is a broad as that of the DRB. Where an applicant
suggests “truly substantial changes to the form or type of an application” a remand is required.
In re Sisters & Brothers Inv. Grp., 2009 VT 58, ¶ 21, 186 Vt. 103. Applicants are not barred,
however, “from presenting minor revisions to the Environmental Court in response to concerns
expressed by interested parties” because otherwise review of land use applications “would
become a procedural ping-pong match: any change would result in a remand for municipal
consideration, followed by another appeal to the Environmental Court.” Id. The Moores
therefore have the opportunity to amend the plans to include any environmental features



                                               9
alleged to be absent from the plans, as this will not create a substantial change to the form or
type of application before the Court.
Question 13 – Impacts of Future Development
       Mr. Nagle’s Question 13 asks “[d]o the proposed subdivision lots adversely affect
adjoining landowners in that the building of single family residences, driveways and accessory
buildings on these lots create impervious surfaces and additional storm water drainage?”
       The application before the Court is for the subdivision of the parcel and not for the
creation of any impervious surfaces such as buildings or driveways. The creation of new lots for
future development can certainly lead to impacts on neighbors. As such, the Court can
consider whether the layout of the lots and the proposed locations of the houses and driveways
will adversely affect neighbors. These buildings and drives are, however, only proposed. The
Moores, or the buyers of the subdivided lots, will need to comply with any applicable provisions
of the Regulations when they seek to actually construct the proposed development. Thus,
because the creation of impervious surfaces is not part of the application before the Court, Mr.
Nagle’s Question 13 is outside the scope of the Court’s review. We therefore GRANT summary
judgment to the Moores on Question 13 and that Question is DISMISSED.
Questions 14 and 15 – Road Frontage and Traffic
       Mr. Nagle’s Questions 14 asks “[d]oes each proposed subdivision lot require a minimum
of 200 feet of frontage on Leap Frog Hollow?” While this Question is worded to ask only for a
legal conclusion, we read it to ask whether the proposed subdivision lots meet the road
frontage requirements of the Regulations.
       Section 607 of the Regulations governs lot size, setbacks, lot coverage, and height
regulations. Table 607 sets out the minimum required road frontages in each zoning district. In
the property’s zoning district, the Low Density Residential district, the Regulations require 200
feet of road frontage for a lot that has on-site water or sewer. It is undisputed that all three
proposed lots have on-site water or sewer, and therefore, each lot would generally require 200
feet of road frontage. It is undisputed that Lots B and B1 meet this requirement. It is unclear
whether Mr. Nagle disputes the road frontage for Lot B1. If he does, he has provided no
evidence to support such a dispute. The Moores, on the other hand, submit a professional
survey depicting the proposed lots which clearly shows 200 feet of road frontage for Lot B1.

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       Lot B2 undisputedly does not have 200 feet of road frontage. Regulations § 607(A)
allows for the development of lots without the required frontage provided there is access to
the road by a permanent easement of right-of-way at least 20 feet in width with DRB approval.
The survey submitted by the Moores depicts a 50-foot easement for access to Leap Frog
Hollow, as well as utilities, for the benefit of Lot B2 over Lot B1. Mr. Nagle has provided
nothing to indicate that he disputes the location of this easement. Thus, as Lot B2 will
undisputedly have access to Leap Frog Hollow by way of an easement at least 20 feet in width,
the Court concludes as a matter of law that Lot B2 does not require 200 feet of road frontage.
We therefore GRANT the Moores’ motion for summary judgment on Question 14.
       Question 15 asks “[d]o the appellees/applicants need to address the increase in traffic
that the proposed subdivision lots will create on Leap Frog Hollow?”
       The Regulations general development standards, § 704, governs “Vehicular Access and
Circulation,” and those standards are considered by the DRB in both preliminary and final
subdivision approval. Regulations §§ 406.D, 407.E. These “general standards” are applicable to
all types of development and must be applied reasonably to each type of application. See In re
Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (mem.) (noting that in construing zoning
regulations the court will consider legislative purpose and “apply common sense”). In the
context of a planned unit development or site plan review, to name two examples, a detailed
look at traffic may be required. Here the application is for a three-lot subdivision on a small
residential road in the low-density residential zoning district. While an increase from one
single-family residence to three single-family residences will technically create an increase in
traffic, no traffic study is required and the Moores need not address the increase in traffic in
the review of the subdivision application. Requiring a formal traffic study for a subdivision
application of the nature before the Court would lead to absurd results. See In re Pierce
Subdivision Application, 2008 VT 100, ¶ 8, 184 Vt. 365 (holding that courts should avoid
interpretations that lead to absurd results).
       Section 704.A provides that the layout of driveways should provide for adequate site
distances and should avoid “movement conflicts with other nearby driveways.” Regulations §
704.A. This is the type of access and circulation regulation that may reasonably apply in
subdivision review. On the undisputed facts before the Court, even viewed in the light most

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favorable to Mr. Nagle, we conclude that the Moores do not need to address increases in traffic
as part of their three-lot subdivision application. We therefore GRANT the Moores’ motion for
summary judgment on Question 15 which only asks about an increase in traffic.
                                               Conclusion
       The Moores’ motion to dismiss or in the alternative for summary judgment on all
questions is GRANTED in part and Questions 1–11 and 13–15 of Mr. Nagle’s Statement of
Questions are DISMISSED. The Moores’ motion to dismiss Question 12 is DENIED as a material
dispute of facts exists regarding whether the Moores’ application meets the requirements of
the Montpelier Zoning and Subdivision Regulations related to the delineation of environmental
resources. Mr. Nagle’s motion for summary judgment on Question 12 is also DENIED for that
reason. Finally, Mr. Nagle’s request that the application be remanded to the DRB is DENIED for
the reasons described above.


Electronically signed on July 28, 2014 at 11:54 AM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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