STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 177-12-14 Vtec

Wells Accessory Building Application DECISION ON MOTION 

Decision on Motion for Summary Judgment

The matter presently before the Court relates to approximately 3 ± acres of land located 

at 30 Cutler Heights Road (“Property”) in East Montpelier, Vermont (“Town”). The Property is 

bisected by Cutler Heights Road, creating a 1.27 acre portion to the west, which includes a 

single-family home and accessory dwellings, and a 1.67 acre portion to the east, which is 

undeveloped. In 2010, Duane Wells (“Applicant”) sought approval to construct a single family 

home on the undeveloped portion to the east of Cutler Heights Road, which was denied by this 

Court in a decision concluding that the Property consisted of a single parcel of land rather than 

two separate parcels and that as such, Applicant was not entitled to construct a second 

residence on the Property. In re Wells Building Application, No. 44-3-11 Vtec (Vt. Super. Ct. 

Envtl. Div. Sept. 26, 2011) (Durkin, J.). 

Applicant now seeks approval for an accessory dwelling on the eastern, undeveloped 

portion of the Property. On December 8, 2014 the Town of East Montpelier Development 

Review Board (“DRB”) denied the application and Applicant timely appealed that denial to this 

Court, filing a Statement of Questions consisting of a single Question asking whether the 

application is barred or precluded by this Court’s decision in Docket No. 44-3-11 Vtec. The 

parties have filed cross motions for summary judgment in their favor, and Deb Glottmann filed 

a joinder to the Town’s motion. Marjorie and Richard Redmann, Matthew Digiovanni, and 

Laruren Oates are interested parties in the matter and appear before the Court pro se. 

Applicant is represented by John C. Page, Esq., the Town is represented by Bruce 

Bjornlund, Esq., and Deb Glottmann is represented by Eric G. Parker, Esq. 
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Factual Background 

For the sole purpose of putting the pending motion into context the Court recites the 

following facts which are undisputed: 

1. Duane Wells (“Applicant”) owns 3 ± acres of land at 30 Cutler Heights Road (“Property”) 

in East Montpelier, Vermont (“Town”). 

2. The Property is bisected by Cutler Heights Road, with a 1.27 acre portion to the west, 

which includes a 1,920 square foot single-family home and accessory dwellings, and a 1.67 acre 

portion to the east, which is undeveloped. 

3. In 2010, Applicant filed a permit application to construct a 1,800 square foot single 

family dwelling and attached three-car garage on the 1.67 acre portion of the Property to the 

east of Cutler Heights Road. 

4. The Town of East Montpelier Zoning Administrator (“ZA”) denied the application and 

the Town of East Montpelier Development Review Board (“DRB”) upheld the denial on the 

grounds that the Property contains insufficient acreage to construct a second single family 

home. Applicant argued, at that time, that the portion of the property on the eastern side of 

the Cutler Heights Road should be treated as a separate parcel of land. 

5. On appeal before this Court, in September 2011 we concluded that the Property 

consists of a single 3 ± acre parcel, rather than two separate parcels bisected by Cutler Heights 

Road, and the application to construct an additional single family dwelling was denied as a 

matter of law under the Regulations. 

6. On September 22, 2014 Applicant submitted an application to construct a 600 square 

foot accessory dwelling and a detached 3-car garage on the Property. 

7. The ZA denied the application, and the DRB upheld the denial, on the basis of this 

Court’s 2011 decision. Applicant timely appealed that denial to this Court. 

Discussion 

 The parties both move for summary judgment on Applicant’s Question 1, which raises 

the sole issue of whether the pending application is precluded by this Court’s 2011 decision in 

In re Wells Building Application, Docket No. 44-3-11 Vtec (Vt. Envtl. Ct. Sept. 26, 2011) (Durkin, 

J.). The Town denied Application’s application for an accessory dwelling on the grounds that 
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the construction of any dwelling on the Property is precluded by this Court’s 2011 decision. 

Applicant argues, however, that his application is sufficiently different so as not to be barred 

under the successive application doctrine. 

Pursuant to Rule 56(a) of the Vermont Rules of Civil Procedure (V.R.C.P.), a party seeking 

summary judgment must show 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). When considering crossmotions for summary judgment, 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. The court also accepts as true all factual 

allegations made in opposition to a motion for summary judgment, so long as they are 

supported by “specific citations to particular parts of materials in the record.” V.R.C.P. 

56(c)(1)(A). Furthermore, we must give the benefit of all reasonable doubt to the non-moving 

party. 

The successive application doctrine is an application of claim preclusion and applies to 

the overall claim that the project is entitled to a permit. In re Application of Lathrop Ltd 

Partnership, 2015 VT 49, ¶ 59, available at http://info.libraries.vermont.gov/supct/current/ 

op2013-444.html. Stated more generally, the successive application doctrine prohibits an 

applicant from re-submitting an application for a municipal permit after the original application 

was denied “unless a substantial change of conditions ha[s] occurred.” In re Armitage, 2006 VT 

113, ¶ 4, 181 Vt. 241 (quoting In re Carrier, 155 Vt. 152, 158). It is governed by 24 V.S.A. 

§ 4472(d), which insulates any decision or act of the DRB from collateral attack, but “carves an 

exception out of the otherwise rigid standard of preclusion of § 4472(d) to allow local boards 

the ability to respond to changing circumstances that often arise in zoning decisions.” Lathrop 

Ltd Partnership, 2015 VT 49, ¶ 58 (citing In re Woodstock Cmty. Trust, 2012 VT 87, ¶ 4, 192 Vt. 

474; In re Dunkin Donuts, 2008 VT 139, ¶ 9, 185 Vt. 583). 

The successive application doctrine provides that a local board “may not entertain a 

second application concerning the same property after a previous application has been denied, 

unless a substantial change of conditions had occurred or other considerations materially 

affecting the merits of the request have intervened between the first and second application.” 
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In re Carrier, 155 Vt. 152, 158 (1990); see also Woodstock Cmty. Trust & Hous. Vt. PRD, 2012 VT 

87, ¶ 4. The second application can be reviewed “when the application has been substantially 

changed so as to respond to objections raised in the original application or when the applicant 

is willing to comply with conditions the commission or court is empowered to impose.” In re 

Application of Lathrop Ltd Partnership I, ¶ 58 (citing In re Carrier, 155 Vt. at 158). The first step

is to determine whether there is a judgment with preclusive effect, and if so, the second step is 

to review the proposal as a whole to determine whether there has been a substantial change. 

Id. at ¶ 66. “In the relaxed environment of zoning permits, it is not determinative that the 

applicant could have or should have made the new proposal at the time of the original permit 

review.” Id. 

Looking at the first step, there is a judgment with preclusive effect as specified in 24 

V.S.A. § 4472(d): the Court’s 2011 decision is final and binding. Looking at the second step, the 

proposed project differs from the original project in two ways: at 600 square feet, the proposed 

home is significantly smaller than the previously proposed 1,800 square foot structure, and the 

application is for an accessory dwelling on the entire 3 acre parcel rather than a single family 

home on the 1.67 acre parcel, which was what Applicant at that time considered to be a 

separate lot. These changes are of a sufficiently substantial nature and respond to objections 

raised in the original application. For this reason, we GRANT summary judgment in favor of 

Applicant, and DENY summary judgment in favor of the Town. 

The Environmental Division’s jurisdiction in an appeal of a decision by a municipal panel 

is dictated and restricted by an appellant’s Statement of Questions. See V.R.E.C.P. 5(f); In re 

Garen, 174 Vt. 151, 156 (2002). That is, the Statement of Questions restricts the scope of an 

appeal before us. Because Applicant’s Statement of Questions does not address the application 

itself, only the issue of whether the application is barred, we do not now address whether the 

application satisfies the Regulations. We therefore REMAND the application to the Town for 

full consideration under the applicable accessory use Regulations. 

 
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Conclusion

 For the reasons stated above, we DENY the Town’s motion for summary judgment, 

GRANT Applicant’s motion for summary judgment, and REMAND the application for further 

review by the DRB. 

Electronically signed on August 11, 2015 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Judge 

Environmental Division