                          Environmental Court of Vermont
                                 State of Vermont

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                    E N T R Y R E G A R D I N G M O T I O N
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Carson A250 JO #3-118                              Docket No. 13-1-08 Vtec
Project:     Carson LUP #3R0133-4
Applicants:   Kenneth & Sally Ann Carson
Appellant :   Beverly Grimes
             (Appeal from District 3 Environmental Commission Decision)

Title: Motion for Summary Judgment, No. 3

Filed:        August 13, 2008

Filed By: C. Daniel Hershenson, Attorney for Appellant Beverly Grimes

Response filed on 08/29/08 by Appellees Kenneth & Sally Ann Carson


___ Granted                 _X_ Denied                 ___ Other

___ Scheduled for hearing on: _________ at ________; Time Allotted ________


      Summary judgment is only appropriate when there are no genuine
issues of material fact in dispute. V.R.C.P. 56(c)(3). Here, each party
has presented material facts, many disputed by the other party, upon which
they conclude that this Court should rule as a matter of law on whether
the Carsons’ shed requires an amendment to their Act 250 Permit.      This
type of ruling requires us to consider whether the shed constitutes a
“change” that is “material” to a pre-existing, permitted development under
Vermont Natural Resources Board Act 250 Rule 34(A).
      Act 250 Rule 2(C)(6) defines a “material change” as “any change . .
. which has a significant impact on any finding, conclusion, term or
condition of the project's permit and which may result in an impact with
respect to any of the criteria specified in 10 V.S.A. Section 6086(a)(1)
through (a)(10).” (Emphasis added.)
      Material facts are currently in dispute as to whether the Carsons’
shed has the type of significant impact described in Act 250 Rule 2(C)(6).
In particular, the parties dispute whether the complained-of shed is the
type of structure that is restricted to the “proposed house site” area
identified in the Carsons’ pre-existing Act 250 permit and whether the
elevated location of the shed, in and of itself, is of such significance
as to cause a material impact, as defined under Act 250 Rule 2(C)(6).
Such analysis requires us to make factual determinations concerning the
complained-of shed and to thereafter make a legal determination of whether
the shed “has a significant impact on any finding, conclusion, term or
condition of the project’s permit and which may result in an impact with
respect to any of the [Act 250] criteria.” Id.
In re Carson Act 250 JO Appel, Docket No. 13-1-08 Vtec (Entry Order on s/j motion)(10-06-08)    Page 2 of 2.




      Material facts are in dispute as to all these factual issues;
summary judgment is therefore inappropriate. V.R.C.P. 56(c)(3). For all
of these reasons, both requests for summary judgment are DENIED.*




___________________________________________      ___October 6, 2008______
      Thomas S. Durkin, Judge                            Date
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Date copies sent to: ____________                Clerk's Initials _______
Copies sent to:
    C. Daniel Hershenson, attorney for Appellant Beverly Grimes
    David Grayck, attorney for Appellees Kenneth & Sally Ann Carson
    Co-Counsel for Appellees, Zachary K. Griefen
    For Informational Purposes Only, Natural Resources Board/LU Panel
    (c/o Melanie Kehne, Esq.)




*
   Appellee Carsons’ memorandum in opposition to Appellant’s summary judgment motion contains a
request that the Court enter summary judgment in Appellees’ favor on the legal issues of whether the
complained-of shed is a change that is material to or regulated by the previously-issued permit. Because
material facts are in dispute, and for the reasons noted above, we conclude it inappropriate at this time to
enter the requested summary rulings.
