                                  STATE OF VERMONT
SUPERIOR COURT                                                 ENVIRONMENTAL DIVISION
Vermont Unit                                                      Docket No. 14-2-14 Vtec

                             Parker Conditional Use Permit

                             ENTRY REGARDING MOTION

Title:        Motion for Summary Judgment (Motion 1)
Filer:        Stephen Coulman
Attorney:     Benjamin H. Deppman
Filed Date:   April 24, 2014

Response filed on 06/03/2014 by Attorney David M. Sunshine for Appellee Lonie Parker
      Opposition

The motion is DENIED.

       In November 2013 Lonie Parker applied for a “home based business” permit to operate
a towing business at his residence, 119 Pine Oak Park in the Town of Watham, Vermont (the
Town). The Waltham Development Review Board (the DRB) held a public hearing on the
application on December 17, 2013. Neighboring property owners Stephen and Margaret
Coulman, through their attorney Benjamin Deppman, Esq., participated in the hearing and
voiced concerns about the proposed home based business. The DRB, by written decision dated
January 24, 2014, approved the application with conditions.
       The Coulmans have appealed that approval to this Court. In their Statement of
Questions, the Coulmans raise 11 questions related to whether the proposed use complies with
the Town of Waltham Zoning, Subdivision, and Floodplain Regulations (the Regulations) and the
Town of Waltham Town Plan. They also raise issues related to whether the application was
materially changed during the hearing before the DRB. Now pending before the Court is the
Coulmans’ motion for summary judgment.
        The Coulmans argue three grounds for summary judgment. First, they argue that based
on the Regulations, Mr. Parker’s proposed use cannot be operated as a home based business as
a matter of law. Second, they argue that Mr. Parker made material misrepresentations to the
DRB and therefore the application should be denied as a matter of law. Finally, they request
that the Court limit the scope of the appeal to the narrow description of the project contained
in Mr. Parker’s application and not the project as described in the DRB hearing and as approved
by the DRB.


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       The Court may only grant summary judgment if the moving party (here, the Coulmans)
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). In ruling on a summary judgment motion, the
Court is directed to “accept as true the [factual] allegations made in opposition to the motion
for summary judgment,” as long as they are supported by reference to materials in the record,
and to give the non-moving party (here, Mr. Parker) the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; V.R.C.P. 56(c).
        First, despite the Coulmans’ argument that Mr. Parker’s application may be denied as a
matter of law, this argument is based on Mr. Parker’s proposed use as they describe it in their
statement of undisputed facts. Mr. Parker, however, disputes the Coulmans’ factual statement
and provides a sworn affidavit in support of the disputed facts.1 For example, the Regulations
regulate the storage of “heavy equipment.” The Coulmans state that the trucks Mr. Parker uses
constitute heavy equipment. Mr. Parker disputes this and avers that he uses single axle trucks
weighing less than 26,000 pounds which are not heavy equipment. The Regulations also
prohibit certain uses from being operated as a home based business, including “motor vehicle
repair,” “junkyards,” and other “similar uses.” Regulations § 501(12). The Coulmans state that
the proposed use is “similar to” a motor vehicle repair shop and a junkyard. Mr. Parker states
that he will not store any junk on the property or repair the vehicles he tows and that the use is
sufficiently dissimilar to the prohibited uses cited by the Coulmans. The Court is unable to
resolve these disputes without a factual record describing the proposed use and its impacts.
Because the parties dispute the basic facts, this record must be developed through trial.
        Second, the Coulmans’ argument that Mr. Parker’s application may be denied on the
grounds that he made “material misrepresentations” to the DRB is not relevant in this de novo
appeal. In this appeal the Court will “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.); see In re Poole, 136 Vt. 242, 245 (1978)
(“A de novo hearing is one where the case is heard as though no action whatever had been held
prior thereto.’”). While a material misrepresentation may have been grounds for the DRB to
reject the application,2 we are only concerned with the accuracy of the evidence presented to
the Court in this appeal.
        Further, Mr. Parker is not prohibited from making alterations to the application so long
as the changes do not materially alter the proposal or the type of permit requested. In re
Sisters and Bros. Inv. Grp., LLP, 2009 VT 58, ¶ 21, 186 Vt. 103 (citing In re Torres, 154 Vt. 233,
236 (1990)). Thus, as a matter of law, we decline to limit the scope of the appeal to the exact
language of the few sentences in Mr. Parker’s original permit application.

1
   While the Coulmans argue that we should disregard Mr. Parker’s statement of disputed facts because the
supporting affidavit is unsigned, the Court’s file contains the original signed and notarized affidavit. This is not
material, however, as we are directed take “‘the entire setting of the case and all materials’ into account.” Cassani
v. Hale, 2010 VT 8, ¶ 20, 187 Vt. 336 (quoting Stamp Tech, Inc. ex rel. Blair v. Lydall/Thermal Acoustical, Inc., 2009
VT 91, ¶ 11, 186 Vt. 369). In considering the entire setting of the case and all materials in the record there can be
little doubt that material facts are in dispute.
2
  Section 4470a of Title 24 provides that an appropriate municipal panel may reject an application that
misrepresents material facts, but this rejection is not mandatory.

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      For the reasons stated in greater detail above, the Coulman’s Motion for Summary
Judgment is DENIED.


Electronically signed on September 12, 2014 at 10:35 AM pursuant to V.R.E.F. 7(d).




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




Notifications:
Benjamin H. Deppman (ERN 1154), Attorney for Appellant Stephen Coulman
Benjamin H. Deppman (ERN 1154), Attorney for Appellant Margaret Coulman
David M. Sunshine (ERN 1529), Attorney for Appellee Lonie Parker
Interested Person Town of Waltham

rkane




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