                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT

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In re Appeal of Shaw, et al.                }                       Docket No. 4-1-05 Vtec
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                           Decision and Order on Pending Motions
        Appellants Karen Shaw, Forest L. Foster, Suzanna Jones, Robert Houriet, Heather
Bryant, Geoff Butler, and K. Elizabeth Cole (collectively referred to as Appellants) appealed
from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Hardwick (Town)
granting a permit for the construction of a telecommunications tower (tower) on property owned
by Wendell and Beverly Shepard.       Cross-Appellant-Applicant Rinker’s, Inc., d/b/a Rinkers
Communications (Rinkers), filed a cross-appeal. Appellants appeared and represent themselves;
Rinkers is represented by L. Brooke Dingledine, Esq.; the Town appears through its non-attorney
Town Manager, Daniel Hill. This matter is before the Court on Appellants’ motion for summary
judgment.
                                     Factual Background
       The following facts are undisputed unless otherwise noted.
       1. Rinkers proposes to locate the tower on the Shepards’ land in the Compact Residential
zoning district of the Town of Hardwick. The Shepards have not appeared as parties in this
proceeding.
       2. The size and dimensions of the Shepards’ land were not submitted into evidence by
either party. However, Rinkers submitted site information representing that the proposed tower
and antenna structure would be just under 200′ tall and that the center of the tower would be no
less than 200′ from the Shepards’ nearest boundary line.
       4. The lease between the Shepards and Rinkers allows Rinkers, as lessee, to occupy a
portion of the Shepards’ property with dimensions of approximately 200′ by 200′ for a term of
twenty years.
       5. On December 7, 2004, the Zoning Board of Adjustment approved Rinkers’ application
(No. 2004-045) for a telecommunications tower zoning permit, but limited the tower’s height to
100′ plus an additional twenty feet for the proposed antenna to be attached to the top of the
tower.
                                                    Discussion
         Appellants allege in their summary judgment motion that the tower does not comply with
the Town’s Bylaw (Bylaw), specifically § 4.15(F)(4), which states that “[t]owers shall be set
back from all property lines and public rights-of-way for a distance equaling their total height,
including attached antennas, unless otherwise permitted by the Board of Adjustment . . . .” Id.
This setback requirement is presumably intended to ensure that if a tower topples, it will not fall
onto other property or across a road or public path. Appellants argue that the relevant “property
line” for the purpose of measuring setbacks is the edge of the leased plot on which the tower is to
be built, rather than the line surrounding and delineating the Shepards’ lot. The lease agreement
describes the leased land as:
         Being a portion of the lands described in the Land Records of the Town of
         Hardwick at Book 59, Page 76, more specifically, a plot of land approximately
         Two Hundred Feet (200′) by Two Hundred Feet (200′), located immediately to
         the south of lands now or formerly owned by Karen Shaw and David C. Taylor of
         Carmel, New York (as described in said Land Records at Book 62, Pages 255-
         257), and lying easterly of Bridgman Hill Road, and having approximate degree
         coordinates of N 44 degrees, 31.239 minutes and W 022 degrees, 21.277 minutes.

Rinkers’ Attach. to Statement of Disputed Facts, Ex. B, at 1.
         If the lease agreement effectively subdivided the Shepards’ property, then the limits of
the leased area could properly be defined as a “property line” and § 4.15(F)(4) would only allow
for a 100′ tower and antenna structure in the center of the 200′ by 200′ area. Rinkers asserts that
the Shepards’ property has not been subdivided and no new lot lines or property lines have been
created by the lease agreement.              The language of the lease agreement supports Rinkers’
assertion, as it only roughly describes the leased area and includes no definitive location of the
boundary lines. Appellants’ assertion of a subdivision is not supported by any other evidence.1[1]
         We must view the relevant evidence in a light most favorable to the non-moving party
when ruling on a motion for summary judgment and may only grant the motion if the applicable
legal standards require an entry of judgment in the moving party’s favor. See Toys Inc. v. F.M.


1[1]
    Such other evidence of a subdivision, missing here, could include a subdivision permit or application, a notice of
violation for failure to obtain a subdivision permit, or some other independent evidence that the Town regards the
leased property as a separate parcel, such as a separate listing on its grand list or tax map.
Burlington Co., 155 Vt. 44, 48 (1990) (“The party against whom summary judgment is sought is
entitled to the benefit of all reasonable doubts and inferences in determining whether a genuine
issue of material fact exists”). In such a light, the evidence here does not support a finding that
the lease agreement effectuated a subdivision of the Shepards’ property. Therefore, Appellants’
motion for summary judgment should be denied.2[2]
         Appellants also ask this Court to enter a default judgment on the ground that Rinkers and
the Town failed to file a timely response to their motion for summary judgment. We decline to
do so, for several reasons. First, Appellants did not copy Rinkers’ counsel when filing their
motion. Such a courtesy is required by the Vermont Rules of Civil Procedure, but sometimes not
followed by parties unfamiliar with our Rules. Once Rinkers’ counsel was made aware of
Appellants’ pending motion, a reply was filed. We therefore deem Rinkers’ memorandum in
opposition to Appellants’ motion as having been timely filed. Second, Appellants appear to be
asking for a remedy that is not applicable here. V.R.C.P. 55 envisions a default entry as being
appropriate when a party fails to file a responsive pleading, such as an answer to a complaint. In
zoning appeals to this Court, a responsive pleading is not necessary when an appellant files their
statement of questions. See V.R.E.C.P. 5(f) (providing that “[n]o response to the statement of
questions shall be filed”). A response to a motion for summary judgment is also not absolutely
required under the applicable civil Rule: V.R.C.P. 56. Although a party who chooses to not file
an opposition to such a motion does so at their peril, entry of judgment is not automatic, since the
court is obligated to first determine that the moving party is entitled to summary judgment as a
matter of law.
         A default judgment is the “ultimate sanction,” C.C. Miller Corp. v. Ag Asset, Inc.,
151 Vt. 604, 607 (1989), and it is only appropriate where the party against
whom it is sought demonstrates “gross indifference, bad faith, or willfulness,
coupled with substantial prejudice to the moving party.” Id. (citing John v.
Med. Ctr. Hosp. of Vermont, Inc., 136 Vt. 517, 519–20 (1978) (internal
quotation marks omitted)). No such bad faith is evident here. We therefore
decline to grant Appellants’ default motion.


2[2]
   It appears from the topographic survey that the proposed tower, if it fell, could fall across a utility right-of-way.
However, we find no evidence that a utility right-of-way is defined as a public right-of-way, so it does not impact
the permitted height of the proposed tower. See § 4.15(F)(4).
       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Appellants’ motions for summary judgment and for default judgment are both DENIED. This
matter shall be set for a pre-trial conference pursuant to a separate notice of hearing issued by the
Court Manager (see enclosed notice). The Court directs that the parties be prepared at that
conference to discuss possible trial dates.


       Done at Berlin, Vermont, this 21st day of October, 2005.



                                                      _________________________________
                                                      Thomas S. Durkin, Environmental Judge
