STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Wilkins Properties, LLC Docket No. 176-10-04 Vtec

Decision and Order on Appellant’s Motion

for Summary Judgment

Appellant Wilkins Properties, LLC appealed from the decision of the Town of Milton 

Development Review Board (DRB), which denied Appellant’s application for Final Plat 

approval for a two lot subdivision of a parcel of land in the “Old Towne Residential/Commercial 

M5” zoning district. Now pending before this Court is Appellant’s Motion for Summary 

Judgment. Neither the Town of Milton (Town), nor the other interested parties in this 

proceeding have filed memoranda in opposition to Appellant’s Motion. Nonetheless, for the 

reasons more specifically expressed below, Appellant’s Motion must be denied.

The issues raised by Appellant’s Motion and Statement of Questions can be summarized 

into two categories. First, as shown by the Statement of Questions, Appellant alleges several 

procedural defects in the manner in which the DRB addressed Appellant’s application, including 

the manner in which the DRB rendered its decision. While some or all of Appellant’s criticisms 

of the procedure the DRB followed in this case may be true, we cannot grant summary judgment 

on this issue, for the following two reasons. First, as noted in more detail below, this Court has 

not received a copy of the DRB decision, so we cannot independently assess its sufficiency. 

Second, since this is a de novo appeal, this Court is charged with making its own determination 

of whether the Appellant’s application is meritorious, and not whether the DRB acted improperly 

in rendering its decision. Any decision properly appealed to this Court provides it with the 

responsibility to consider the subdivision application anew. Vermont Rules for Environmental 

Court Proceedings (V.R.E.C.P.) 5(g).

Appellant next argues that the actions of the DRB were so deficient as to require this 

Court to render the DRB decision meaningless. Appellant follows this argument by suggesting 

that the proper remedy, once this Court determines that the DRB decision should not be 

recognized, is to deem Appellant’s application as approved, due to the DRB’s alleged failure to 

render a decision within the 45-day period mandated by our Legislature in 24 V.S.A. 

§ 4464(b)(1). This we cannot do. Our Supreme Court has cautioned that the “deemed approved’ 
remedy should not be used “beyond its intended purpose,” which the Court defined as a “remedy 

[to zoning board] indecision and protracted deliberations.” In re Newton Enterprises, 167 Vt. 

459, 464-65 (1998) (citing In re Fish, 150 Vt. 462, 464 (1988) and Hinsdale v. Village of Essex 

Junction, 153 Vt. 618, 623-24 (1990)). The Supreme Court went on to caution that the deemed 

approved remedy should be “strictly construed . . . to apply only when it clearly implements the 

statutory purpose.” Newton, 167 Vt. at 465. Since it is undisputed here that the DRB rendered a 

decision within 45 days from its hearing, it would not be appropriate for this Court to deem 

Appellant’s application as approved by operation of law.

The main deficiency in Appellant’s argument is that this Court has not been given copies 

of the filings below, so that it may make its own determination on the sufficiency of the DRB’s 

decision. Given that this is a de novo proceeding, the Court would also need to receive copies of 

the then current Milton Zoning Ordinance, Appellant’s application and supporting

documentation, including site maps.

While V.R.C.P. 56 does not mandate that parties file affidavits to support their respective 

positions for or against a pending motion for summary judgment, the initial burden rests squarely 

with the moving party to convince a trial court that (1) the facts material to the case are not in 

dispute and (2) the applicable legal precedent requires that judgment be entered in their favor. 

Miller v. Merchants Bank, 138 Vt. 235, 237-8 (1980). While Appellant’s Motion contains a 

section captioned “Statement of Material Facts,” Appellant offers no documentation or other 

foundation for the factual assertions made in its Motion. An affidavit may have been sufficient; 

certainly the filing with this Court of its application, supporting documents, the Milton Zoning 

Ordinance and the DRB decision would have allowed this Court to make an independent 

determination of whether the Appellant’s factual assertions have merit.

The Court is aware that this case has been pending for some eight months or more. It 

appears from an assertion in Appellant’s Motion that its application may have first been 

submitted to the Town for review more than one year ago. We are also aware that Appellant’s 

Motion was filed with this Court over six months ago, before the undersigned was appointed and 

before this Court went through some significant transformations as of January 31, 2005. We 

therefore have scheduled a status conference (see attached Notice of Hearing) so that the Court 

may determine how best to proceed with this case.
Accordingly Appellant’s Motion for Summary Judgment is DENIED, with discretion to 

renew once the factual record is more complete.

Done at Berlin, Vermont, this 13th day of July, 2005

Thomas S. Durkin, Environmental Judge

Date ______________ copies sent to: Clerk’s initials: ________

Attorney Glitman

Attorney Wilson

Jane M. Lafayette

John Sharrow

John Blatt

Stanley Richards

Sandra Richards

Sharon R. Hazen

Horace & Ann Clark

Ronald L. Stewart

Robert Lemons