                                      State of Vermont
                           Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Goddard College Conditional Use                   Docket No. 175-12-11 Vtec
(Appeal from Town of Plainfield Development Review Board decision)

Title: Motion to Conduct Appeal as De Novo Proceeding (Filing No. 2)
Filed: March 2, 2012
Filed By: Appellee/Applicant Goddard College

Supplemental Memorandum filed on 3/19/12 by Appellee/Applicant Goddard College
Response in Opposition filed on 3/19/12 by Interested Person Town of Plainfield

 X Granted                      ___ Denied                    ___Other

        Rhea Wilson (Appellant) appeals a decision by the Town of Plainfield Development
Review Board (the DRB) finding that all site plan criteria were met and granting a conditional
use permit with conditions to Goddard College (Applicant) to construct a building that will
house a proposed central wood-chip heating system on property Applicant owns in the Town
of Plainfield, Vermont (the Town). Now pending before this Court is Applicant’s motion to
conduct the appeal as a de novo proceeding. In support of its motion, Applicant has submitted
a copy of the Plainfield Selectboard’s March 1, 2010 Resolution establishing the DRB as well as a
copy of the DRB’s Policy and the Town’s Conflict of Interest Policy. Applicant has also filed a
supplemental memorandum including the DRB’s Rules of Procedure. In response, the Town
has submitted a copy of the Rules of Procedure and contends that because the Town is an on-
the-record town, this Court should conduct its review on the record.
        For a municipality to adopt on-the-record review before this Court, it must, by
resolution or adoption of a bylaw, (1) “provide that appeals of certain appropriate municipal
panel determinations shall be on the record”; (2) “define[] what magnitude or nature of
development proposal shall be subject to the production of an adequate record by the panel”;
and (3) “provide[] that the municipal administrative procedure act shall apply in these
instances.” 24 V.S.A. § 4471(b). Once a municipality has properly adopted on-the-record
review by complying with Section 4471(b), a development review board’s failure to follow one
of the procedural requirements to which it is subject may require remand to the development
review board or may result in a decision by this Court invalidating the development review
board’s decision, but it will not result in conversion of an on-the-record appeal to a de novo
appeal before this Court. In re Sprague Farms, LLC, No. 107-6-08 Vtec, slip op. at 4 (Vt. Envtl.
Ct. Nov. 4, 2008) (Wright, J.). In contrast, where a municipality fails to properly satisfy the three
requirements of Section 4471(b) to adopt on-the-record review, this Court can consider an
appeal de novo. See In re Dunnett, 172 Vt. 196, 198-99 (2001) (holding that this Court properly
conducted a de novo review of a development review board’s decision when the Town of
Ludlow did not satisfy the third requirement of Section 4471(b)); see also 24 V.S.A. § 4472(a)
In re Goddard College CU, No. 175-12-11 Vtec (EO on Mot to Conduct Appeal De Novo) (04-26-12)   Pg. 2 of 3



(providing that appeals to this Court, if not on the record under Section 4471(b), shall be de
novo).
        In its motion, Applicant makes clear that it does not contend that the DRB failed to
follow one of the procedural requirements to which it is subject (i.e., it does not merely contend
that the record of the DRB hearing is incomplete). Rather, Applicant contends that the Town
has not met the statutory requirements of Section 4471(b) to properly adopt on-the-record
review, and thus this Court should review the matter de novo. We therefore proceed with an
analysis of the requirements of Section 4471(b) to determine whether the Town has properly
enacted on-the-record review.
        First, the Town must have provided that appeals from the DRB will be on the record. 24
V.S.A. § 4471(b). The Selectboard’s Resolution creating the DRB indicates that “all meeting [sic]
shall be ‘on the record’ and open to the public.” This provision appears to be an attempt to
provide that appeals from the DRB will be on the record. It does not explicitly address appeals,
however; in fact, it refers only to the DRB meetings themselves. The provision is therefore
insufficient to satisfy this first requirement. The DRB Policy, the Conflict of Interest Policy, and
the Rules of Procedure also do not specifically address on-the-record appeals. Accordingly, the
Town has not satisfied the first requirement of Section 4471(b).
       Second, the Town must have defined the “magnitude or nature of development
proposal” which will be subject to on-the-record review. Id. Here, the Selectboard’s Resolution
makes only a broad statement that the DRB’s meetings will be on the record. It does not specify
the specific types of proceedings that will be subject to on-the-record review and will thus
require a more detailed record. Nor does the DRB Policy, the Conflict of Interest Policy, or the
Rules of Procedure define the magnitude or nature of proceedings that are allegedly on-the-
record. Accordingly, the Town has not met the second requirement of Section 4471(b).
        Finally, the Town must have provided that the Municipal Administrative Procedure Act
(MAPA), 24 V.S.A. §§ 1201–1210, applies to its proceedings. Id. MAPA provides the minimum
due process rights of parties in contested hearings. 24 V.S.A. § 1202(c). It creates procedural
rights and imposes procedural duties, regulating such things as notice, hearing procedure, ex
parte communications, decisions, and appeals. See 24 V.S.A. §§ 1201-1210.
        Here, the Town has provided this Court with nothing that indicates that it has
specifically adopted MAPA to govern the DRB’s proceedings. The Selectboard’s Resolution
makes no reference to MAPA. Furthermore, although the DRB Policy lists “[a]dopt rules of
procedure . . . necessary to carry out [the DRB’s] duties” as a responsibility and duty of the
DRB, it does not specifically adopt MAPA or otherwise directly refer to its provisions. Nor do
the Conflict of Interest Policy or the Rules of Procedure expressly adopt MAPA to govern
proceedings before the DRB.
        Moreover, the Town has not adopted many of the key MAPA requirements. For
example, 24 V.S.A. § 1205(c) requires that, at a hearing before the appropriate board, the
presiding officer “cause the proceeding to be recorded.” The Resolution states that “all meeting
[sic] shall be ‘on the record.’” While this might be an attempt by the Town to implement a
recording requirement in its Resolution, it is insufficient. It does not specifically require the
DRB to record its hearings in accordance with MAPA. The Town has also not included a
recording requirement in the DRB Policy, the Conflict of Interest Policy, or the Rules of
Procedure. This was the precise issue that resulted in our de novo review in Dunnett, 172 Vt. at
In re Goddard College CU, No. 175-12-11 Vtec (EO on Mot to Conduct Appeal De Novo) (04-26-12)            Pg. 3 of 3



199 (affirming this Court’s decision to hold a de novo hearing when the Town of Ludlow did
not require its Development Review Board to record the hearings before it). Accordingly, the
Town has not satisfied the third requirement of Section 4471(b).
       Because the Town has failed to satisfy the three requirements of 24 V.S.A. § 4471(b), it
has not properly adopted on-the-record review.1 We therefore GRANT Applicant’s motion to
conduct this appeal de novo.




_________________________________________                                    April 26, 2011          _
       Thomas G. Walsh, Judge                                                     Date
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Date copies sent to: ____________                                             Clerk's Initials _______
Copies sent to:
    Rhea Wilson, Appellant, pro se
    Brian S. Dunkiel, Attorney for Appellee/Applicant Goddard College
    Elizabeth H. Catlin, Co-counsel for Appellee/Applicant Goddard College
    Interested Person Yvonne Byrd
    Interested Person Daniel Towner
    Interested Person Town of Plainfield




1  We note that we have previously treated the Town as an on-the-record town in our decision in Saman
ROW Appeal and its associated entry orders. See In re Saman ROW Appeal, No. 176-10-10 Vtec (Vt.
Super. Ct. Envtl. Div. Feb. 6, 2012) (Walsh, J.). The scope of an appeal before the Environmental Division
is limited to the issues the parties raise in their statement of questions. Reporter’s Notes, V.R.E.C.P. 5(f)
(“The statement [of questions] functions like a pleading to limit the issues that are to be heard on the
appeal . . . .”). In Saman, no party contested whether the Town had properly adopted on-the-record
review by either raising the issue in the statement of questions or by filing a motion, and we therefore did
not consider the issue. Here, however, Appellant’s Question 1 of her Statement of Questions asks
whether, in light of the fact that the DRB hearing was not recorded, this Court should hear the appeal de
novo. Moreover, Applicant filed a motion asking that the Court conduct a de novo review of the appeal.
