                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                }
In re: Freedom Foods                            }
        Decision that Variance Not Required,1   }      Docket No. 243-10-08 Vtec
        and Site Plan Review                    }
        (Appeal of Truran and Salyer)           }
                                                }

             Decision and Order on Cross-Motions for Summary Judgment

      Appellants Eric Truran and Diana Salyer appealed from a decision of the

Development Review Board (DRB) of the Town of Randolph, granting site plan

approval and determining that no variance was required. Appellants are represented

by Paul S. Gillies, Esq.; Appellee-Applicant Freedom Foods, LLC, is represented by

Frank H. Olmstead, Esq.. The Town is participating in these proceedings through its

Zoning Administrator, Ms. Mardee Sánchez, but has not filed memoranda on the

pending motions.

      The represented parties have moved for summary judgment on all four

questions of the Statement of Questions. The following facts are undisputed unless

otherwise noted.

      This is an on-the-record appeal, as the Town of Randolph has adopted and

implemented the procedures necessary for such appeals pursuant to 24 V.S.A. § 4471(b).

See, e.g., In re Application of Blakeman, No. 167-8-05 Vtec, slip op. at 1 (Vt. Envtl. Ct.

June 19, 2006) (Wright, J.). Even in an on-the-record appeal, legal issues are reviewed

without affording deference to the DRB’s legal conclusions. In re Beckstrom, 2004 VT


1 The caption originally assigned by the Court erroneously referred to the application
as “conditional use” and site plan review; however, it does not in fact involve
conditional use approval.
                                            1
32, ¶ 9, 176 Vt. 622 (mem.) (citing In re Gulli, 174 Vt. 580, 582 (2002) (mem.)).



       On July 31, 2008, Appellee-Applicant applied for a zoning permit and for site

plan approval for renovations to the property at 24 Pleasant Street in the Commercial

zoning district. The property is Unit B of a four-unit condominium. The property was

vacant; its former uses had been for a health food store and café with food preparation

and storage. The proposed uses were stated on the application as “food preparation,

retail store, and warehouse/storage.” The narrative on the form described the proposed

work as “[r]enovation to include 5 food production rooms for agricultural based

specialty foods; common storage for ingredients & shipment to wholesale, distributor

and web accounts; [and] Retail Space for natural and specialty food store.” The page of

the application pertaining to site plan review showed no changes proposed, and as to

parking adequacy, showed the maximum number of employees on the premises at any

one time as “16,” during the time period of 7 a.m. to 6 p.m.

       The zoning administrator classified the proposed use as “food production” with

“accessory retail sales,” and referred it to the DRB for site plan approval, as well as for

consideration of a variance as food production is not an allowed use in the district.

Appellee-Applicant’s application to the DRB, nominally for the variance, stated that “no

proposed uses vary from past facility uses.”

       The matter was warned for the DRB public hearing for August 26, 2008, as

follows: “[v]ariance request and, pending outcome of variance request, site plan review

for a specialty foods company (packing, shipping, and distribution) with some retail

sales at 24 Pleasant Street, Unit B.”

       The record of the August 26, 2008 hearing was transcribed2 and provided to the


2  The transcript is replete with “unidentified speaker,” and “unintelligible.” While the
transcript is adequate for purposes of the present motions, the DRB may wish to
consider the adequacy of its recording techniques, as this Court has found it necessary
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Court. It discloses that the DRB first took evidence on and discussed the previous uses

conducted in the building and concluded that a variance was not required, that is, that

the proposed uses were essentially a continuation of the past uses. The DRB then

proceeded to consider evidence relating to site plan approval and voted to approve the

site plan. The DRB issued its decision in writing on September 30, 2008; the written

decision contains a statement that the DRB had determined at the hearing that a

variance is not required, and otherwise contains the DRB’s consideration of and ruling

on the site plan. Appellants filed the present appeal on October 23, 2008.

       Based on the DRB’s site plan approval, the Zoning Administrator issued Zoning

Permit #Z-08-83 on October 2, 2008. Appellee-Applicant received the permit on October

3, 2008 and posted it as required. 24 V.S.A. § 4449(b). The Zoning Permit was not

appealed to the DRB.



       The Statement of Questions, filed and amended prior to the entry of appearance

of counsel on behalf of Appellants, raises the following four issues.

             1. Whether the proposed use of Freedom Foods, LLC, registered
       with the Vermont Secretary of State as “Manufacturing and Distribution
       of Food[,]” is a permitted, conditional[,] or prohibited use in the
       Commercial District and whether it can be approved without a variance;
             2.    Whether changing a hearing warned as a prohibited
       use/variance hearing to a hearing of permitted and conditional use by the
       DRB during said hearing is in accord with the law;
             3. Whether the noises associated with the operation of . . . Freedom
       Foods, LLC will have an impact sufficient to change the character of the
       neighborhood (and of any of the condominiums within the building); and


to remand some poorly-recorded records. See, e.g., In re Morgan Meadows/Black Dog
Realty Subdivision Final Plat, No. 156-7-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Nov. 17,
2008) (Wright, J.) (unpublished entry order) (remanding to DRB “to conduct a
proceeding making an adequate record” because “the record is inadequate and cannot
be reconstructed” [pursuant to the procedures in V.R.A.P. 10]).
                                            3
              4. Whether the uses proposed by Freedom Foods, LLC, are
       authorized by the Condominium Agreement entered into by and between
       [Appellants] and [the owner of Unit B] to be occupied by Freedom Foods,
       LLC. . . . . (Quotation omitted).
At a pretrial conference the parties and the Court discussed proceeding with summary

judgment solely on Question 1, because it could be dispositive of the appeal if a

variance were in fact required for the project.         Appellants moved for summary

judgment on Question 1; however, Appellee-Applicants moved for summary judgment

on all four questions.



       Question 4

       Question 4 raises issues as to the interpretation of a Condominium Agreement

that are beyond the jurisdiction of the Environmental Court. See, e.g., In re Appeal of

Hildebrand, No. 228-12-04 Vtec, slip op. at 4 (Vt. Envtl. Ct. Oct. 13, 2005) (Durkin, J.),

aff’d, 2007 VT 5, 181 Vt. 568 (mem.); Appeal of Bowman, No. 70-5-96 Vtec, slip op. at 2

(Vt. Envtl. Ct. June 21, 2005) (Wright, J.). Question 4 is therefore DISMISSED.



       Question 2

       Appellants are correct that it is not permissible for a DRB to change a hearing

warned only as a variance hearing to a hearing for conditional use. In re Torres, 154 Vt.

233, 235–36 (1990); accord Village of Woodstock v. Bahramian, 160 Vt. 417, 424 (1993); In

re Snelgrove Permit Amendment, No. 25-1-07 Vtec, slip op. at 9 (Vt. Envtl. Ct. July 18,

2008) (Wright, J.) (citing Torres, 154 Vt. at 236); In re Bouldin Camp – Noble Road, No.

278-11-06 Vtec, slip op. at 6 (Vt. Envtl. Ct. Apr. 23, 2007) (Wright, J.) (citing Torres, 154

Vt. at 235–36).

       However, that is not what occurred in the present case. The hearing was warned

both for a variance and, depending on the DRB’s ruling on the variance, to continue to

consider site plan approval. Inherent in the warning for the variance hearing was the
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issue of whether a variance was even required. Once the DRB had determined that no

variance was required, it was free to proceed to site plan approval, which had also been

warned.

       If the DRB’s reasoning that a variance was not required was that the proposed

uses were permitted uses in the district, nothing more was required. If the DRB’s

reasoning that a variance was not required was that the proposed uses were conditional

uses in the district, a hearing would have had to have been warned for conditional use

review before the DRB could proceed to consider conditional use approval. Similarly, if

the DRB’s reasoning that a variance was not required was that the proposed uses were

continuations of grandfathered non-conforming uses that had not been discontinued for

more than a year, a hearing would have had to have been warned for the DRB to

consider the application under § 2.5.1. The DRB did not warn any additional hearings,

nor did it consider the application either for conditional use approval or as a

continuation of a non-conforming use under § 2.5.1, so that those issues are not before

the Court in the present appeal.

       As the DRB did not “change” the hearing or take up issues that had not been

warned for that hearing, summary judgment must be granted to Appellee-Applicant on

Question 2.



       Question 3

       To the extent Appellants intended for Question 3 to refer to the requirement of 24

V.S.A. § 4414(3)(A) that conditional uses not result in an “undue adverse effect

on . . . the character of the area affected,” that criterion only applies to conditional use

approval. As the application was not warned for or considered for conditional use

approval, Question 3 is beyond the scope of this appeal. Torres, 154 Vt. at 235–36.

       As written, Question 3 does not raise an issue related to site plan review criterion

§ 4.1(b), requiring the proposed use to “be [in] such a location and [of] such size and
                                             5
character that it will be in harmony with the appropriate and orderly development of

the surrounding area.” Accordingly, Question 3 is also DISMISSED.



       Question 1

       As stated, Question 1 asks an impermissible advisory opinion. See In re 232511

Invs., Ltd., 2006 VT 27, ¶ 19, 179 Vt. 409 (citing In re Bennington Sch., Inc., 2004 VT 6, ¶

19, 176 Vt. 584); In re Remy Subdivision Alteration, No. 21-1-08 Vtec, slip op. at 7 (Vt.

Envtl. Ct. July 31, 2008) (Durkin, J.) (citing 232511 Invs., 2006 VT 27, ¶ 19). The issue

before the Court in this or in any appeal involving a zoning application is what the

applicant has applied to do on the property at issue in the appeal, not what the

applicant’s business purposes are as registered with the Vermont Secretary of State.

Therefore the phrase “of Freedom Foods, LLC, registered with the Vermont Secretary of

State as ‘Manufacturing and Distribution of Food’” must be dismissed from Question 1

as beyond the scope of the appeal.

       The remaining portion of Question 1 remains to be determined in this appeal:

“Whether the proposed use [] is a permitted, conditional[,] or prohibited use in the

Commercial District and whether it can be approved without a variance.”

       Appellee-Applicants argue that any remaining question has become moot

because Appellants did not appeal the issuance of the Zoning Permit to the DRB, and

the zoning permit therefore cannot now be challenged, either directly, or indirectly in

the present appeal. 24 V.S.A. § 4472(d). However, the resolution of the remainder of

Question 1 has legal consequences for the status of Appellee-Applicant’s use. That is,

without resolving the remainder of Question 1, the parties do not know whether

Appellee-Applicant’s use is non-conforming,3 despite the fact that it holds a zoning


3 Either as a continuation of a formerly-existing non-conforming use, or as a non-
conforming use granted a zoning permit by error of the Zoning Administrator. See 24
V.S.A. § 4303(15).
                                             6
permit and is entitled to operate. The remainder of Question 1 has not become moot

and remains at issue in this appeal. See, e.g., In re Marsh Zoning Permit, No. 135-7-08

Vtec, slip op. at 4 (Vt. Envtl. Ct. Mar. 17, 2009) (Wright, J.).



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that a portion of Question 1 and the whole of Questions 3 and 4 of the Statement of

Questions are DISMISSED, and that as to Question 2, Appellee-Applicant’s Motion for

Summary Judgment is GRANTED and Appellants’ Motion for Summary Judgment is

DENIED, as discussed above. Pursuant to the February 4, 2009 scheduling order, the

parties are directed to proceed to mediation, except that they may request a telephone

conference to be scheduled if they wish to discuss whether the remaining portion of

Question 1 can now also be decided as a matter of law.




       Done at Berlin, Vermont, this 19th day of March, 2009.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge




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