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VERMONT SUPERIOR COURT

Environmental Division Docket No. 57-8-20 Vtec

32 Cherry St, 2nd Floor, Suite 303,

Burlington, VT 05401

802-951-1740

www.vermontjudiciary.org

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In re Wolcott SD Final Plat Denial │ DECISION ON MOTIONS

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James Wolcott (“Applicant”) and neighbor David Hering (“Neighbor”) have filed cross 

motions for summary judgment in Mr. Wolcott’s appeal from a final decision of the Town of 

Cambridge Development Review Board (“DRB”) denying his application for subdivision approval. 

The Town of Cambridge (“Town”) joins and adopts Neighbor’s motion for summary judgment 

and opposition to Applicant’s motion. Also before the Court is Neighbor’s motion to supplement 

his Statement of Undisputed Material Facts.

Applicant is self-represented. Neighbor is represented by Claudine Safar, Esq. and

Christian Chorba, Esq. The Town is represented by James Barlow, Esq.

Background

Applicant is seeking to subdivide a parcel of land he owns on Gallup Brook Lane in the 

Town of Cambridge (“the Property”). Applicant proposes to divide the roughly 80-acre parcel

into three lots. He filed his application for final plat approval with the DRB in May and June of

2020. The DRB held a public hearing on that application on July 13, 2020 and denied approval in 

a final decision dated July 24, 2020. 

Prior to applying for approval from the Town, Applicant completed a project review sheet 

with the Department of Environmental Conservation (DEC). The review sheet underwent 

multiple revisions based on amendments to Mr. Wolcott’s proposal, with what we understand 

to be the final version published on March 5, 2020. See Neighbor’s Exh. 1, Wolcott Subdivision 

Application at 10–12 (hereinafter “Subdivision Application”). For the DEC review, which takes 
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place under state environmental permitting requirements, Mr. Wolcott proposed to subdivide 

the parcel into Lot 1 (7.5 acres) Lot 2 (6.8 acres) and Lot 3 (roughly 65 acres). He proposed that 

Lots 1 and 2 would each be developed with one single-family residence, on-site wastewater 

system and potable water supply. He proposed no new development for Lot 3 and indicated that 

he would remove four of the existing six structures located there, leaving a 12’ x 12’ primitive 

camp and 10’ x 40’ box trailer to be used as personal storage. Id. 

Through that review, the District Coordinator determined that the proposed project did 

not trigger Act 250 jurisdiction, as it did not constitute development as defined in the Act 250 

rules. Additionally, the DEC Assistant Regional Engineer determined that a state wastewater 

system and potable water supply permit was required for the creation of residences on Lots 1 

and 2. Finally, the DEC Permit specialist issued a preliminary non-binding opinion that multiple 

other state permits as well as local permits were likely required. Id. We understand the DRB 

opinion to indicate that Mr. Wolcott subsequently applied for and received a wastewater and 

potable water supply permit from the State. See In re James Wolcott, Permit No. SD-2020-02, 

Findings of Facts ¶ 6 (Tn. of Cambridge Dev. Review Bd., July 24, 2020) (hereinafter “In re Permit 

No. SD-2020-02”). 

We discuss these prior applications in some detail to clarify a point of apparent confusion. 

Mr. Wolcott, through his subdivision application and his filings, has repeatedly and mistakenly 

suggested that DEC had approved of his plans for the subdivision and that this entitled him to 

municipal approval. The project review sheet is very clear that it is not a permit, but rather an 

opinion as to which permits and state approvals a proposed project may require—it says in bold 

print at the top of the first page, “This is not a permit.” To be clear, even had a state agency 

issued one permit for a project, that would not, absent other facts, preclude a local zoning board 

or other decision maker from denying local permit approvals. Further, different local and state 

statutes in Vermont have different definitions of terms such as “development” and whether a 

project constitutes development under one statute may be unrelated to whether it is 

development under a different statute.
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Mr. Wolcott’s cover letter to his subdivision application describes the project in terms 

that largely mirror the March 5, 2020 DEC project review sheet. See Subdivision Application at

1–3. He proposes three lots, with approval for one single family home each on Lots 1 and 2 and

no new development on Lot 3. The cover letter also suggests that there are or were existing 

structures on all three lots. As to Lot 3, it suggests that “two structures shall remain” after 

subdivision and “the rest shall be removed,” without indicating the number to be removed or the 

nature of each structure. Id. While the plat map submitted with his application, however, depicts

existing structures on Lots 1 and 2, it does not depict any existing structures on Lot 3. See Id. at 

4, “Subdivision Plat.”

Discussion

Before turning to the cross motions for summary judgment, we offer one clarification 

based on the party’s filings and address the outstanding motion. First, Neighbor’s motion for 

summary judgment indicates his understanding that we have not yet addressed Applicant’s first 

motion to amend his statement of questions.1 We granted that motion, however, on the record 

at a status conference held on December 21, 2020, at which Neighbor was represented by 

different counsel. We understand the confusion may in part have been generated by the fact 

that our decision on Neighbor’s motion to strike Mr. Wolcott’s Statement of Questions2referred 

exclusively to the Statement of Questions as filed on August 10, 2020. We apologize for this 

confusion; however, having granted this motion on the record and not addressed its questions 

in the motion to strike, we must treat these questions as having become part of the Statement 

of Questions. 

I. Motion to admit Supplemental Statement of Undisputed Material Facts:

1 Neighbor subsequently filed a second motion to amend the Statement of Questions, which we denied as the 

proposed additional questions raised issues outside the scope of our subject matter jurisdiction. In re Wolcott SD 

Final Plat Denial, No. 57-8-20 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Mar. 4, 2021) (Walsh, J.).

2 We treated this motion as one to dismiss the appeal under 12(b)(1), since the arguments were directed at the 

legal sufficiency of the claims. Wolcott SD Final Plat Denial, 57-8-20 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. 

Aug. 11, 2021) (Walsh, J.).
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There is an outstanding motion by Neighbor to allow him to supplement his Statement of 

Undisputed Material Facts. Neighbor filed that motion after receiving Applicant’s response to his 

original Statement of Undisputed Material Facts and cross motion for summary judgment. 

Through that response, Applicant claimed there existed a genuine dispute of material fact as to 

whether any structures existed on Lot 3 at the time he submitted his subdivision application. 

Neighbor has therefore moved to add three additional paragraphs to his Statement of 

Undisputed Material Facts,supported by four exhibits, which, he claims, provide further evidence 

that these structures existed. Because we find below that Applicant has not created any genuine 

dispute of material fact as to the existence of those structures, we DENY this motion as moot.

II. Cross Motions for Summary Judgment

To prevail on a motion for summary judgment, the moving party must demonstrate “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), applicable here through V.R.E.C.P. 5. The nonmoving party 

“receives the benefit of all reasonable doubts and inferences,” but must respond with more than 

unsupported allegations in order to show that material facts are in dispute. Robertson v. Mylan 

Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. For the purposes of the motion, the Court “will accept 

as true the allegations made in opposition to . . . summary judgment, so long as they are 

supported by affidavits or other evidentiary material.” Id. When considering cross-motions for 

summary judgment, as we do here, the Court considers each motion individually and gives the 

opposing party the benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint 

Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. 

In an appeal to the environmental division, the scope of appeal, including in a de novo 

review, is generally limited to those issues raised by an appellant’s Statement of Questions. See

Reporter's Notes, V.R.E.C.P. 5(f); In re Joyce, 2018 VT 90, ¶ 15, 208 Vt. 226. As with a complaint 

in a civil action, a Statement of Questions should therefore provide a short and plain statement 

of the legal and factual issues the appellant wishes the Court to resolve. Reporter’s Notes 

V.R.E.C.P. 5(f). Because of this function of the Statement of Questions, parties before our Court 

typically direct their motions for summary judgment to some or all of the questions contained in 
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the Statement of Questions. We accept that in this case, doing so was made more difficult by 

the way in which Applicant, a pro se litigant, has framed his questions. Those questions do not 

clearly express the errors that Applicant believes the DRB made in denying his application, but 

instead ask about the meaning and applicability of the various provisions of the bylaws, including 

those cited to by the DRB. Subsequent developments in the case, chiefly our dismissal of many 

questions in response to Neighbor’s motion to strike, have helped focus the Statement of 

Questions on the relevant legal issues. However, some lack of clarity remains. 

As we noted in our decision on the motion to strike, we read Applicant’s Statement of 

Questions with some leniency in light of our obligation to assure he does not suffer an unfair 

disadvantage as a pro se litigant. Wolcott SD Final Plat Denial, 57-8-20 Vtec, slip op. at 3 (Vt. 

Super. Ct. Envtl. Div. Aug. 11, 2021) (Walsh, J.) (citing Sandgate Sch. Dist. V. Cate, 2005 VT 88, ¶ 

9, 178 Vt. 625).3 In that decision, we declined to dismiss those Questions that related to the 

DRB’s conclusions and raised issues within our subject matter jurisdiction in a de novo review. 

Id. In the same spirit, Neighbor directs his motion for summary judgment to all four of the DRB’s 

stated grounds for denial of the application, arguing that the DRB was correct, and its conclusions 

should be affirmed. This approach, which elevates substance over form, is a sensible way of 

treating the somewhat chaotic Statement of Questions. Applicant cannot be prejudiced by this 

approach, which interprets his Statement of Questions to raise all the legal issues he could have 

raised with the DRB’s conclusions. Moreover, in his cross motion for summary judgment, he 

adopts the same structure. We will therefore follow suit, although we have re-organized the 

issues from the DRB and Neighbor’s second and third grounds for denial for greater concision 

and clarity.

A. Whether the subdivision application must be denied because it does not show the 

‘existing features including buildings’ and ‘existing foundations’ on Lot 3?

3 While the Court recognizes its important obligation to protect pro se litigants, such as Applicant in this case, from 

being the victim of unfair advantage, it is not this Court's responsibility to offer affirmative help to a pro se litigant. 

See Nevitt v. Nevitt, 155 Vt. 391, 401 (1990) (citing Olde & Co. v. Boudreau, 150 Vt. 321, 322 (1988)). Like all others, 

unrepresented litigants are bound by the ordinary rules of civil procedure. Vahlteich v Knott, 139 Vt. 588, 590–91 

(1981).
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The DRB determined, and Neighbor argues we should affirm, that the application for 

subdivision is incomplete because Mr. Wolcott’s final plat does not depict buildings and possibly 

foundations of buildingsthat by his own admission existed on Lot 3 at the time of the application.

Under the Subdivision Regulations, § 3.02(B)(1), the final plat application must include:

“A map of the property prepared by a licensed land surveyor, registered civil engineer, or 

registered architect, showing the existing conditions including:

a. The number of acres within the original parcel; location of existing property lines; 

existing easements, deed restrictions; and existing features including buildings; wooded 

areas; roads; water courses and wetlands; existing foundations; and other existing 

physical features, including prime and statewide agricultural soils.” (emphasis added).

Neighbor claims that there were both buildings and foundations for buildings on Lot 3 at 

the time of application; that these were not shown on any map accompanying that application; 

and that the application is therefore incomplete and must be denied. As evidence for the 

existence of the buildings, Neighbor cites the following: 

1. In the DEC project review sheet, which Applicant attached to his subdivision 

application to the DRB, DEC summarized Applicant’s representations as to the 

structures existing on Lot 3: “An 8' X 30' camper, an 8' x 10' shed, an 8' x 30' RV . . . an 

8‘ x 30‘ RV . . . [a]n abandoned 12' x 12' primitive camp and a 10' x 40' box of an 18 

wheeler.” According to that review sheet, Applicant proposed to remove the first four 

structures by September 1, 2020 and leave the final two on the property. See 

Subdivision Application at 10. Of these structures, at the very least the shed and the 

primitive camp would be buildings or foundations for buildings.

2. In the cover letter to his subdivision application, Applicant referred to these 

representations on the DEC review sheet, stating “Two structures [on Lot 3] shall 

remain as stated in DEC Project Review Sheet. The rest shall be removed as stated in 

DEC Project Review Sheet.”

3. In a site visit to the property on June 8, 2021, Neighbor’s counsel reports having 

viewed three separate buildings on Lot 3. Counsel submitted photographs of these 

buildings as Exhibits 9(a), 9(c) and 9(d) to Neighbor’s Statement of Undisputed 

Material Facts.
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4. In his remarks at the DRB’s public hearing on Applicant’s Subdivision application, the 

DRB chair reported having viewed multiple buildings and other structures on Lot 3 

during an inspection of the property.

See Neighbor’s Statement of Undisputed Material Facts, ¶¶ 3, 4, 10, 12, 15.

This evidence is sufficient to presumptively establish that there existed at least two

buildings and/or foundations on Applicant’s property at the time he filed his subdivision 

application: the 8’ x 10’ shed and the 12’ x 12’ camp. Whether Applicant planned to thereafter 

remove the shed is irrelevant to whether he was required to depict it on his subdivision map; the 

plain language of the bylaws indicate that all existing buildings must be depicted. 

In his response to Neighbor’s motion, Applicant argues that there exists a genuine dispute 

as to whether buildings existed on his property at the time of the application. At the end of his 

motion, Applicant includes a response to Neighbor’s Statement of Undisputed Material Facts, in 

which he disputes the relevance of the DEC project review sheet and the cover letter to his 

subdivision application. Applicant’s Statement of Undisputed [sic] Material Facts ¶ B. Applicant

also seeks to contest Neighbor’s reliance on photographs taken by Neighbor’s attorney because

“[e]ach photograph is not specific as to time and place on the property of the Applicant.” Id. ¶ 

D.

Mr. Wolcott has not raised a genuine dispute because he has not supported his claim that 

there were no structures at the time of the application with “affidavits or other evidentiary 

materials.” Robertson, 2004 VT 15, ¶ 15; V.R.C.P. 56(c). For example, he has not taken the 

straightforward step of filing a sworn affidavit attesting to the absence of any buildings on Lot 3 

at the time of his application or cited to any evidence in the record supporting such an absence. 

Nor has he successfully shown that Neighbor’s cited materials do not establish the absence of a 

genuine dispute or that Neighbor cannot produce admissible evidence to establish the absence 

of a genuine dispute. See V.R.C.P. 56(c). In this regard, we note that Applicant is wrong as to the 

relevance of the DEC project review sheet and his own cover letter. As core parts of the 
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subdivision application that is the very subject of this de novo review, those are clearly relevant 

pieces of evidence.4 

Given the lack of a genuine dispute that buildings were present on Lot 3 at the time of 

application, Applicant was required to depict those buildings on a map included with his 

application.

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 This is true regardless of whether Applicant was proposing to defer further 

development on Lot 3. See Subdivision Regulations § 3.02(B)(1). In the absence of this 

information, the application is incomplete. We therefore GRANT Neighbor’s motion and DENY 

Applicant’s motion for summary judgment on this issue. On this basis, we affirm the DRB’s denial 

of the application. For the sake of completeness, we proceed to consider the remaining issues in 

the cross motions for summary judgment. 

B. Whether the application must be denied because it does not show the location and 

size of any existing sewers, water mains, and wells?

The same provision that requires a subdivision application to include a map showing 

existing buildings also requires the map to show the “location and size of any existing sewers and 

water mains, individual or community sewage disposal systems, wells, culverts and drains on the 

property.” Subdivision Regulations § 3.02(B)(1)(c). The regulations repeat this requirement for 

wells or onsite wastewater systems at § 4.03(B), although it is less clear whether that provision 

applies only to existing wells, or also to proposed wells. The DRB cited these two provisions as 

further bases for denying the application and Neighbor argues we must affirm. 

Neighbor claims that the undisputed material facts establish that Applicant had at least 

started to construct a water well on Lot 3 at the time of the application and that because no such 

well is shown on the final plat, the application must be denied as incomplete. As a starting point 

we note that, unlike the buildings on Lot 3, neither the DEC project review sheet nor Applicant’s 

subdivision application reference the existence of a well. As evidence for this well’s existence, 

Neighbor cites the DRB chair’s presentation to the July 2020 DRB hearing, which referenced such 

4 We do not opine here on whether the DEC project review sheet would be admissible at trial on this basis, or 

whether it would require testimony by one with firsthand knowledge of its preparation to be admissible.

5 Although Applicant tries to raise doubt as to whether the regulations specify how exactly to portray structures on 

a map, his engineer clearly knew how to do so: the plat depicted existing structures on Lots 1 and 2 with rectangles 

and labels. See Subdivision Application at 4, “Subdivision Plat.” A complete application would have done the same 

for existing structures on Lot 3. 
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a well, and his counsel’s photographs taken in June 2021. Neighbor’s Statement of Undisputed 

Material Facts ¶¶ 12, 15. We conclude that this evidence, portions of which may be inadmissible, 

does not establish the existence of the well beyond dispute. We therefore DENY Neighbor’s 

motion for summary judgment on this issue. However, we also note that Applicant has not put 

forward any evidence that would suggest no such well existed at the time of his application; we 

therefore must DENY his cross motion for summary judgment on this issue as well. We wish to 

be clear that if there is an existing well, sewer, or water main, it must be shown on any 

resubmitted application.

C. Whether the application must be denied because no wastewater disposal system 

or on-site water supply are proposed—or if proposed are not depicted—for Lot 3?

Neighbor makes several related arguments concerning the lack of a proposed water 

supply or wastewater disposal system for Lot 3. We treat those arguments together.

The Subdivision Regulations, § 4.03(B), require “new lots proposed for any purpose other 

than agriculture, forestry, recreation or conservation” to “demonstrate a location for wastewater 

disposal (sewer hookup on on-site), water supply, [and] other utilities . . . .” Applicant has not 

indicated such locations for Lot 3 on any of his maps, and Neighbor argues this is a basis to deny 

the application. However, § 4.03(E) states that the DRB “may defer requirements of these 

regulations” if a new lot “is intended for agricultural, forestry, or conservation purposes, or is

greater than ten (10) acres in size and will not be developed at the time of subdivision approval.” 

We interpret the reference in § 4.03(E) to “these regulations” to refer exclusively to the standards 

contained in Section 4.03, which are intended to ensure that each lot created through a 

subdivision has some prospective use. See Id. § 4.03(A). In his application, Applicant requested 

that the DRB consider his proposal as one to defer development on Lot 3, which is larger than 10 

acres. He therefore argues that the requirements of § 4.03(B) should not apply to Lot 3. In turn, 

Neighbor argues that because structures already exist on Lot 3, the lot must be considered 

“developed at the time of subdivision approval” and so is not exempt from Section 4.03’s 

requirements.
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This is essentially a dispute over the meaning of the phrase “will not be developed at the 

time of subdivision approval.” This dispute raises two legal issues: first, the meaning of the word 

“developed,” which is not defined under the Subdivision Regulations, and second, whether § 

4.03(E) allows the DRB to defer the requirements of Section 4.03 for a lot on which some 

development has already taken place, if no new development is proposed. However, we consider 

it unnecessary to resolve those issues here for several reasons. First, we have already denied the 

application based on the failure to portray existing structures on the plat, making resolution of 

these issues unnecessary for disposition of the case. See, e.g., In re: Smith 2-Lot Subdivision 

(Appeal of Riley), No. 247-11-05 Vtec, slip op. at 6 (Vt. Envtl. Ct. Feb. 9, 2007) (Durkin, J.) (declining 

to resolve the issue of whether a lot had been “gerrymandered” under a town’s regulations

where the Court had already found the lot did not otherwise comply with the regulations). 

Second, the language of § 4.03(E) is permissive—it says the DRB “may” defer the 

requirements for parcels that will not be developed, but it does not require the DRB to do so. 

Sitting in the DRB’s shoes in this de novo review, we would therefore also have discretion to defer 

the requirements, assuming § 4.03(E) allowed us to do so. Rather than exercise this discretion 

here on an issue of first impression, we consider it more appropriate to allow the DRB to interpret 

the meaning of this provision with greater specificity and clarity should Applicant re-apply for this 

subdivision. Cf. In Re Wright & Boester CU Appl’n, 2021 VT 80, ¶ 24 (indicating that remand is 

appropriate to allow the lower tribunal to weigh in on a “statutory interpretation issue of first 

impression.”). Finally, there remain unresolved factual issues about the extent of any existing 

and future developments, making summary judgment inappropriate. We therefore DENY 

summary judgment to both parties on this issue of whether the application must meet the 

requirements of § 4.03(B). 

Neighbor’s next related argument concerns § 4.05(D). This provision requires an 

applicant to show the location of any proposed wastewater treatment system or hookup for each 

parcel, or to “clearly identify the parcel as not having an approved wastewater site.” Applicant’s 

plat neither shows the location of a proposed wastewater treatment system for Lot 3 nor 

indicates that applicant proposes a use for Lot 3 that does not require a wastewater system. The

plat does show, however, the proposed location of a wastewater system on Lot 3 that would 
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serve Lots 1 and 2. The language of the regulations issufficiently ambiguous that Applicant might 

have mistakenly believed this was sufficient to comply with § 4.05(D). We are mindful that 

“because zoning ordinances are in derogation of private property rights, they must be construed 

narrowly in favor of the property owner . . . and any ambiguity is resolved in favor of the 

landowner.” In re Lathrop Ltd. P'ship I, 2015 VT 49, ¶ 29, 199 Vt. 19 (internal citations omitted). 

We therefore consider Applicant’s failure to include a statement on the plat that Lot 3 was not 

proposed for a use requiring a wastewater system as, at most, harmless error. In the future,

however, Applicant should indicate on the map for each lot either the proposed location of a 

wastewater system serving that lot, or indicate that the lot has not been approved with a 

wastewater site.

Lastly, § 4.04(C) requires an applicant to “provide evidence of the location of all proposed 

wells and evidence that these locations will meet applicable State regulations.” Regardless of 

the applicability of § 4.03, Neighbor appears to argue that a well is proposed for Lot 3—the same 

well that Neighbor argues already exists. Because we have already concluded that § 4.03(E) may 

exempt lots eligible for deferred status only from the requirements of Section 4.03, we further 

conclude that § 4.04(C) is applicable to Lot 3, even assuming that lot is eligible for deferral of the 

requirements of Section 4.03. Because Neighbor’s evidence for this point, however, is the same 

as we found insufficient to establish the presence of a well, Neighbor has not established the lack 

of a genuine dispute as to whether Applicant is proposing to build a well on Lot 3. Summary 

judgment for either party on this issue is therefore inappropriate. We remind Applicant that all 

proposed development, including wells, should be shown on a subdivision application, and that 

developing a lot in a manner that divergesfrom what is depicted on an approved final subdivision 

plan is a violation under the Subdivision regulations. See Subdivision Regulations § 3.02(E). 

D. Whether the application fails to ensure access for emergency vehicles on stretches 

of road with grades of more than 10% and so must be denied? 

Regulations § 4.07(B) requires any proposed private roads and driveways serving a 

subdivision to not exceed a maximum grade of 10% at any point. Ifthey do, the DRB “shall require 

. . . measures to ensure access for emergency vehicles.” § 4.07(B)(4)(a). The DRB cited this

provision as one the application did not meet, and Neighbor argues that this is a ground for 
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denying the application. Neighbor has not pointed to any evidence in the record to establish that 

Applicant’s proposal includes stretches of road or driveway with a grade of more than 10%. It is 

impossible to tell simply by looking at the grading plan whether such stretches of road exist; 

however, we note that the grading plan indicates one area will be re-graded to fall below the 

10% maximum. Neighbor’s Exhibit 1 at 7, “Grading Plan.” In light of this lack of clarity, we 

conclude that we must DENY summary judgment to both parties on this issue. 

E. Whether the application must be denied for a failure to include proposed utilities 

on the site plan or to include an abutting landowner in a road maintenance 

agreement?

Neighbor also raises two further grounds within his third argument for why the 

application must be denied: Applicant's failure to include all proposed utilities in the maps 

accompanying the application and his failure to include Neighbor as a party to a proposed road 

maintenance agreement for Gallup Brook Lane. The DRB did not include these among its reasons 

for denying the application. See In re Permit No. SD-2020-02, Decision and Conditions (July 24, 

2020). Our de novo review is “limited to consideration of the matters properly warned as before 

the local board.” In re Maple Tree Place, 156 Vt. 494, 500 (1991). It is true that the DRB need 

not actually decide an issue for us to review it, so long as the DRB could have properly decided 

that issue and interested people had a chance to speak on it. Id.; see also In re Irish Const. Appl., 

No. 44-3-08 Vtec, Slip op. at 11–12 (Vt. Envtl. Ct., April 6, 2009) (Durkin, J.) (“In short, within the 

context of the pending application, we can do whatever the municipal panel ‘might’ have done 

at a [properly warned] hearing . . . but we can do no more.” (citing In re Torres, 154 Vt. 233, 235–

36 (1990)). We decline to complete these analyses here, however, as doing so is not necessary

to resolve the present matter.

F. Whether the application must be denied because Lot 3 does not meet the 

requirements for deferral of development?

Lastly, Neighbor argues we should affirm the DRB’s finding that “existing and apparent 

ongoing improvements on Lot 3” demonstrate that the proposed use of the lot is not “deferred 

development” as Applicant indicated in his application, and that the application must therefore 

be denied. See In re Permit No. SD-2020-02, Decision and Conditions ¶ 4 (July 24, 2020). As 
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explained above, we decline to resolve this issue here, given that it involves statutory 

interpretation questions of first impression and given the presence of genuine disputes of fact. 

See supra Section II.C. We therefore DENY summary judgment to both parties on this issue.

Conclusion

Neighbor has sufficiently demonstrated that buildings existed on Lot 3 at the time 

Applicant submitted this subdivision application. Because the applicable regulations clearly 

required such buildings to be shown on the application, which they were not, we conclude that 

the application must be denied. We therefore GRANT Neighbor’s motion and DENY Applicant’s 

motion for summary judgment on this issue. On this basis, we affirm the DRB’s denial of the 

application. Applicant should not read our denial of summary judgment to both parties on 

Neighbor’s remaining claimed grounds for denial as an affirmative finding that his application is 

sufficient in those areas. 

A Judgment Order is issued concurrently with this decision. This concludes the matter 

before the Court.

Electronically Signed: 3/9/2022 12:49 PM pursuant to V.R.E.F. 9(d).

Thomas G. Walsh, Judge

Superior Court, Environmental Division