1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re General Land Company } Conditional Use Application } Docket No. 22 3-10-08 Vtec (Appeal of General Land Company) } }

Decision and Order on Pending Motions to Dismiss an d for Partial Summary Judgment

Appellant-Applicant General Land Company (“Applican t” or “General Land”) appealed from a decision of a municipal panel 1 of the Town of Plymouth (the panel), denying approval of a proposed five-lot subdivision . Appellant-Applicant is represented by A. Jeffry Taylor, Esq.; Interested Pe rsons Richard Martin and Kermit R. Upton have appeared and represent themselves; and t he Town is represented by William E. Flender, Esq. Applicant’s motion to amend its statement of questi ons was granted in February 2009. Several of the pending motions had been file d prior to the amendment, and the amended questions carried forward from Applicant’s several earlier-filed statements of questions were renumbered or presented in a differe nt order. To avoid confusion, all references to the questions in Applicant’s Statemen t of Questions are to the Amended Statement of Questions filed on January 21, 2009, and use the numbering system of the Amended Statement of Questions. In addition, Amended Question 7, which carried forwar d Recast Question 3, should have been omitted entirely, as Recast Questio n 3 was withdrawn by AppellantApplicant by letter of January 12, 2009, due to the f act that it duplicated Recast Question

2.

1 The issue of whether this panel was the Zoning B oard of Adjustment, the Planning Commission, or both, is germane to the appeal and is fully discussed in this decision.2

Motion to Dismiss The Town moved to dismiss Amended Questions 10, 14, 1 5, and 16 (Recast Questions 6, 10, 11, and 12). While it is true that Amended Questions 10 and 14 a re encompassed in and will have to be answered in order to rule on Amended Que stion 12, there is no reason to dismiss them. Rather, they, together with Amended Q uestions 15, 16, and 17, address the merits of the case, however awkwardly drafted. None of the questions can be answered in the abstract or in general; they must b e related to the merits of the present application, which is de novo before this Court. Accordingly, Amended Questions 10 and 15 can only be answered as to this application, not in the abstract. Amended Question 16 is incompatible with the de novo task before this Court. The motion to dismiss is therefore GRANTED as to Amended Question 16, and is otherwise DENIED, with Questions 10 and 15 limited to the merits of t his particular application. At the telephone conference (scheduled in the final paragr aph of this decision) the parties should be prepared to clarify the scope of the rema ining issues as to the merits of this application.

Motions for Summary Judgment The Town moved for partial summary judgment as to A mended Questions 1, 2, 3, 4, 5, 8, 9, and 11. In addition, Applicant has rai sed an issue regarding Amended Question 13. Any other issues that Applicant sough t to incorporate through the Gilmore Road, LLC memorandum are beyond the scope of the questions raised in the Amended Statement of Questions, and therefore are be yond the scope of the present appeal. As Applicant’s March 17, 2009 memorandum incorporate d by reference the March 13, 2009 summary judgment memorandum of Gilmor e Road, LLC in Docket No.3

194-9-08 Vtec, the Court has considered the Selectbo ard minutes and other documents filed by Gilmore Road, LLC in connection with that m emorandum, as well as the exhibits filed by both moving parties in the presen t appeal. 2 The following facts are undisputed unless otherwise noted. Applicant applied on April 22, 2008, for a condition al use permit to subdivide an 83.5-acre parcel of property into five lots. The p roperty is located in the RD5 and RD10 zoning districts of the Town of Plymouth, in which t he minimum lot sizes are five and ten acres, respectively. The property is located on the easterly side of Pine Hill Road, a

class 4 road. The panel considering the application held hearings on June 3, 2008, July 1, 2008, and August 5, 2008, at which meeting the hearing was closed, but the vote was tabled until a missing member could participate in the Sep tember 2, 2008 hearing at which a vote was taken. The panel issued an unsigned writte n decision internally dated September 10, 2008. The decision denied the applic ation on the basis that it fails to meet conditional use standard § 4.16.2(c), regarding land scaping and screening, and § 4.16.2(g): “[t]he character of the area affected [,] as defined by the purposes of the zoning district and the stated policies and standar ds of the Plymouth Town Plan.”

Enabling Authority in State Statute Since 1995, the state statute has allowed municipali ties to create development review boards (DRBs) to conduct the functions forme rly allocated to the ZBA as well as to conduct the subdivision and site plan review fun ctions formerly allocated to the Planning Commission. 24 V.S.A. § 4461(a) (2003); 2 4 V.S.A. § 4460. 3 The creation of a

2 A decision has also been issued regarding similar motions in In re Gilmore Road, LLC , No. 194-9-08 Vtec (Vt. Envtl. Ct. Sept. 10, 2009) (Wright, J.).

3 All citations to the state statutes without a pa renthetical year refer to the current version.4

DRB leaves the Planning Commission to perform solel y its planning functions. The Town of Plymouth has not created a development revi ew board. A municipality’s legislative body is authorized to create a planning commission under 24 V.S.A. § 4321, which was in effect in 1967. Until it was amended in 2004 (2003, No. 103 (Adj. Sess.), § 1), 24 V.S.A. § 4323 (2003) provided for the term of each member to be four years in length, and required the terms o f the members first appointed to be staggered. The 2004 amendment, codified at § 4323(a ), requires the legislative body of the municipality to determine the terms of the plan ning commission members. Section 4322 provides that a planning commission “shall hav e not less than three nor more than nine voting members.” As it existed prior to the 2004 amendments, 24 V.S. A. § 4461(b) (2003) allowed the legislative body of a municipality to appoint a ZBA, “where the planning commission does not serve as the board of adjustmen t,” and to determine the number and terms of office of the ZBA members, subject to 2 4 V.S.A. § 4461(a) (2003), which provided that the ZBA “shall consist of not fewer t han three nor more than nine persons, as the legislative body of the municipality determines . . . .” Section 4461(a) (2003) also provided that the ZBA “may consist of t he members of the planning commission . . . or may include one or more members of the planning commission.” Prior to the 2004 amendments, the zoning administrat or could hold any other office in the municipality. 24 V.S.A. § 4442(a) (2 003). The equivalent provision in 24 V.S.A. § 4448(a) now specifies that the zoning admi nistrative officer may not serve on the ZBA (or on the DRB in a municipality with a DRB ). When appointing a member to fill a vacancy of any o f the three types of municipal panels (DRB, ZBA, or Planning Commission), t he legislative body of the municipality is required to fill a vacancy “for the unexpired terms and upon the expiration of such terms.” 24 V.S.A. § 4448(c). Th is provision carries forward the former5

provisions regarding planning commissions, § 4323(a) (2003), and ZBAs, § 4461(a) (2003).

History and Characterization of Plymouth Panel(s) The Selectboard of the Town of Plymouth created a f ive-member Planning Commission on April 3, 1967, and appointed specific p ersons as chair and for staggered terms for the four remaining slots. At that time, a s the state statute provided for fouryear terms for Planning Commission members, it was n ot necessary for the Selectboard to establish the length of the term of the Planning Commission members. The first zoning ordinance was adopted in Plymouth in 1973. It appears to have provided for a Zoning Board of Adjustment, as the Se lectboard appointed one later that year, but the Court has not been provided with the 1 973 zoning ordinance. Without the ordinance, the Court cannot determine whether it pro vided for a specific number of

members for the ZBA. On August 27, 1973, the Selectboard appointed “all me mbers of the Planning

Board” 4 to serve on the Board of Adjustment, and also “appo inted 3 new members to both Planning & Board of Adj[ustment] for [a] perio d of 3 years.” This action resulted in both panels having eight members, with the same i ndividuals serving on both panels. It was customary for the Selectboard to make appoin tments to appointive town offices at its first regularly scheduled meeting af ter Town Meeting Day in early March. In the present appeal, the Court has not been provid ed with the appointments between 1973 and 2001, or with the zoning ordinances in effe ct prior to the 2007 Zoning

Ordinance.

4 The Court notes that in 1973, even before the “Bo ard” of Adjustment was created, the Selectboard referred to the Planning Commission as the Planning “Board.”6

The parties do not dispute that the individuals app ointed by the Selectboard to the Board of Adjustment since 1973 routinely perfor med the tasks assigned by the zoning ordinance to both the Planning Commission an d to the ZBA. Under the state statute (prior to the 2004 amendmen ts, which first referred to the municipal bodies as “appropriate municipal panels”) , in a town without a DRB, it was only the planning commission that had statutory aut hority to rule on applications for subdivision (in a town that had adopted subdivision regulations), 24 V.S.A. § 4415 (2003), or on applications for site plan approval, 24 V.S.A. § 4407(5) (2003). It was only the zoning board of adjustment that had statutory a uthority to rule on applications for conditional use approval. 24 V.S.A. § 4407(2) (200 3). At least as of its appointments in 2001, the Select board characterized its appointments as being to the “Zoning Board of Adjus tment” without referring to whether the individuals appointed were also to serv e as the Planning Commission, without referring to a specific length of term of o ffice, and without referring to the total number of members of either the ZBA or a Planning C ommission. In 2001, the Selectboard appointed eight individuals to the “Zoning Board of Adjustment,” including the person appointed as Zonin g Administrator. In the correspondence and minutes of fifty-five meetings o f the panel held between September of 2001 and February of 2009, the panel characterize d itself variously as the “Planning and Zoning Commission,” “Planning and Zoning Board,” “Planning Commission/Zoning Board of Authority,” “Plymouth Zon ing Board,” “Planning Commission/Board of Adjustment,” “Zoning/Planning Bo ard,” and “Zoning and Planning Commission.” In 2002, the Selectboard appointed nine individuals to the “Zoning Board of Adjustment,” and did not at that time appoint a Zoni ng Administrator. In 2003, the Selectboard appointed Jim Allen as Zoning Administr ator, and appointed seven other individuals to the “Zoning Board of Adjustment.” I n 2004, Jim Allen was also a7

member of the Selectboard, which appointed seven oth er individuals to the “Zoning Board of Adjustment,” and did not mention an appoint ment as Zoning Administrator. Mr. Allen was appointed annually as Zoning Administ rator from 2005 through 2008 and continued to serve as Zoning Administrator thro ugh at least the hearings on the present application. In 2005, the Selectboard appointed the following sev en individuals to the “Zoning Board of Adjustment”: Tom Ellis (Chair), Kar en Bruyn (Clerk), Virginia Kroitzsh, Jeff Sailer, John Wheeler, Taz Squire, and Al len Epstein. The cover page of the Town Plan, adopted by the Selectboard on December 5, 2005, states that it was “prepared by the Plymouth Planning Commission,” 5 with the assistance of the regional

commission. In early March of 2006, the Selectboard appointed th e following six individuals to the “Zoning Board of Adjustment”: Tom Ellis (Cha ir), Karen Bruyn (Clerk), Virginia Kroitzsh, Jeffrey Sailer, Allen Epstein, and Jim Riege r. The Selectboard appointed a seventh member to the “Plymouth ZBA,” Betsy Tonkin, a t its October 9, 2006 meeting. In 2007, the Selectboard appointed “all existing Tow n Offices for another term,” which had the effect of reappointing the following panel members: Tom Ellis (Chair), Karen Bruyn (Clerk), Virginia Kroitzsh, Jeffrey Sailer, All en Epstein, Jim Rieger, and Betsy

Tonkin. A Plymouth Zoning Ordinance was adopted on January 29, 2007, and an Interim Zoning Ordinance, incorporating revisions to comply with the National Flood Insurance Program, was adopted on October 22, 2007. The cover page of the Interim

5 The parties have not provided the Court with any cover letter or minutes of the Planning Commission that would show the individuals who served on the Planning Commission that prepared the Town Plan, although no party disputes that the Planning Commission that prepared the Town Plan was composed of the same individuals who had been appointed by the Selectboard to the Zoning Board of Adjustment and who performed other Planning Commission functions under the Zoning Ordinance.8

Zoning Ordinance states that it was “developed by t he Plymouth Planning

Commission,” 6 with assistance from the regional commission. At the February 2008 initial hearing on the Gilmore Road, LLC application, the minutes are headed: “Plymouth Planning Commission” on one line and “Zoning Board of Adjustment” on a second line. The persons liste d as being “Present for the Board” are Tom Ellis, Karen Bruyn, Jeff Sailer, Jim Rieger, Be tsey Tonkin, Ginny Kroitszh, and Jim Allen. Allen Epstein did not participate in th e February, June, or July 2008 hearings on Applicant’s application. On March 10, 2008, the Selectboard reappointed Tom El lis (Chair), Karen Bruyn (Clerk), Virginia Kroitzsh, Jeffrey Sailer, Allen Epst ein, and Jim Rieger to the “Zoning Board of Adjustment,” but did not mention Betsy Tonk in. The omission may have been unintended, if the Selectboard was working from the March 2006 list of appointed town

officers. At the June 2008 hearing on the General Land applic ation, the minutes are headed: “Plymouth Planning Commission/Zoning Board of Adjustment.” The persons listed as being “Present for the Board” are Tom Ell is, Jeff Sailer, Jim Allen, Karen Bruyn, Jim Rieger, and Betsy Tonkin. Ms. Kroitszh had resi gned. The minutes reflect that Tom [Ellis] opened the meeting and “announced the Board ’s practice to treat Jim Allen’s membership as ‘ex-officio’ and as a non-voting memb er of the Planning Commission.” The minutes also state that “[t]he Board will seek additional members.”

6 The parties have not provided the Court with any cover letter or minutes of the Planning Commission that would show the individuals who served on the Planning Commission that prepared the Zoning Ordinance, altho ugh no party disputes that the Planning Commission that prepared the Zoning Ordina nce was composed of the same individuals who had been appointed by the Selectboa rd to the Zoning Board of Adjustment and who performed other Planning Commiss ion functions under the Zoning Ordinance.9

At the July 2008 hearing on the General Land applic ation, the minutes are headed: “Plymouth Planning Commission/Zoning Board of Adjustment.” The persons listed as being “Present for the Board” are Tom Ell is, Jeff Sailer, Betsy Tonkin, Karen Bruyn, Jim Allen, and Jim Rieger. At the August 2008 hearing on the General Land appl ication, the minutes are headed: “Plymouth Planning Commission/Zoning Board of Adjustment.” The persons listed as being “Present for the Board” are Tom Ell is, Jeff Sailer, Betsy Tonkin, Jim Rieger, and Jim Allen. At the September 2008 hearing on the General Land a pplication, the minutes are headed: “Plymouth Planning Commission/ Zoning Board of Adjustment.” The persons listed as being “Present for the Board” are Tom Ell is, Jim Rieger, Karen Bruyn, Jeff Sailer, Betsy Tonkin, and Jim Allen. The members vot ed unanimously to deny the application. At no time during any of the proceedings on the Gen eral Land application did anyone raise any issue as to whether the panel was sitting as the Planning Commission, the ZBA, or both; as to whether Betsy Tonkin had bee n properly reappointed; or as to whether the 2005 Town Plan had been proposed to the voters by a properly constituted planning commission. A replacement for Ms. Kroitsz h was not appointed by the Selectboard until after the September 2, 2008 heari ng. At least since the adoption of the 2007 zoning ordi nance, which assigns at least planned unit development (§ 5.1) and conditional us e approval (§ 4.16) to the Planning Commission, the panel members appointed by the Selec tboard regularly and routinely performed the tasks assigned to both the Planning C ommission and to the ZBA under the ordinance. The forms and fee schedule used by the panel are headed “Board of Adjustment/Planning Commission,” although the area o n the form for registering the panel’s action refers only to the “Board of Adjustm ent” or “Board.” The application requirements for conditional use approval or planne d unit development refer only to10

“the Planning Commission” or “the Commission.” The minutes of the meetings are

headed with the names of both bodies, and the writte n decisions are headed with the names of both bodies, regardless of whether the dec ision being made is one assigned under the ordinance to the Planning Commission or t o the ZBA.

Amended Questions 1, 4, 5, and 8 – Legality of Plannin g Commission as of 2005 preparation of Town Plan through September 2008 act ion on Applicant’s subdivision In 1973, the Selectboard created a Zoning Board of A djustment composed of the five members of the then-Planning Commission, and ap pointed three additional members to serve on both bodies. From that point f orward the bodies sat in a single session at hearings and made decisions allocated by the state statute and by the zoning ordinance specifically to one or the other body. T he Selectboard treated the bodies as a single body, and annually appointed individuals to a single body of seven members,

which it referred to in its minutes from 2001 throu gh 2008 as the Zoning Board of Adjustment. The body as so appointed did in fact pe rform the functions both of a Planning Commission and of a Zoning Board of Adjust ment under the zoning

ordinance. Because the body sitting (unchallenged at the time of the hearings) to hear and decide Applicant’s subdivision conditional use appl ication acted promptly by taking a vote on the same day as closing the hearing, the dee med approval provisions of the statute do not result in deemed approval of the app lication, despite the irregularities of the Selectboard’s appointment process. The purpose of deemed approval is “to remedy indecision and protracted deliberations . . . ,” In re McEwing Services, LLC , 2004 VT 53, ¶ 21, 177 Vt. 38, but it must be narrowly applied to avoid results that are “wholly at odds with the zoning ordinance.” In re Newton Ente rprises , 167 Vt. 459, 465 (1998); see id. (“[W]e have strictly construed the [deemed appr oval] remedy to apply only when it11

clearly implements the statutory purpose.”). Becau se there was neither indecision nor protracted deliberation in the present case, deemed approval is not applicable. Rather, the acts of the body sitting and acting as b oth the Planning Commission and as the ZBA, even if not properly appointed as th e Planning Commission by the Selectboard, are valid by application of the de facto officer doctrine. As described by the United States Supreme Court: [t]he de facto officer doctrine confers validity up on acts performed by a person acting under color of official title even th ough it is later discovered that the legality of that person’s appointment . . . to office is deficient. Nguyen v. United States , 539 U.S. 69, 77 (2003) (citing Ryder v. United Stat es , 515 U.S. 177, 180 (1995)). The Vermont Supreme Court has applied the doctrine in cases in which an officer is “in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstan ces as not to present the appearance of being an intruder or usurper.” State v. Oren , 160 Vt. 245, 247 (1993) (quoting Waite v. Santa Cruz , 184 U.S. 302, 323 (1902)). See also In re G.V. , 136 Vt. 499, 501–02 (1978) (“[A]n officer coming into possession of his office under the forms of law and assuming to act under a proper commission is a de facto officer whose acts are binding as to third persons, despite some infirmity in the qualifications of the officer.”). When applying the doctrine, other courts have placed particular importance on

an officer’s or board or commission member’s exerci se of apparent authority and the public’s acquiescence to that discharge of authorit y. See, e.g., Equal Employment Opportunity Comm’n v. Sears, Roebuck and Co. , 650 F.2d 14, 17 (2d. Cir. 1981) (“The doctrine has generally been applied to individuals who are in possession of an office, are performing the duties of the office, and who mai ntain an appearance of right to the office.”); In re Bunker Hill Urban Renewal Project 1B of Community Redevelopment Agency of City of Los Angeles , 389 P.2d 538, 552 (Cal. 1964) (“Persons claiming to be12

public officers while in possession of an office, os tensibly exercising their functions lawfully and with the acquiescence of the public, ar e de facto officers.”). The Vermont Supreme Court has recognized the import ance of this doctrine to the public interest in the stable functioning of go vernment, stating that the doctrine operates to “protect the public's reliance on an of ficer's authority and to ensure the orderly administration of government by preventing technical challenges to an officer's authority.” Oren , 160 Vt. at 247. Ultimately, the doctrine “springs from the fear of the chaos that would result from multiple and repetitio us suits challenging every action taken by every official whose claim to office could be open to question . . . .” Ryder v.

United States , 515 U.S. at 180. It is particularly important in a field such as municipal zoning and planning, in which many selectboards, as w ell as many planning commissions and zoning boards, are composed of volu nteer citizens who are carrying out their duties without professional assistance. See Leo’s Motors, Inc. v. Town of

Manchester , 158 Vt. 561, 564 (1992) (discussing the “informalit y that often typifies municipal proceedings”); In re Appeal of Leikert , No. 2004-213, slip op. at 4 (Vt. Nov. 10, 2004) (unpublished mem.) (“We recognize that dev elopmental review boards are often made up mostly of lay people, many of whom hav e limited experience or training in adjudicative matters.”). In this case, the members of the municipal panel wer e carrying out the function (and operating under the name) of both the Planning Commission and the ZBA under color of an official appointment, and with the acqui escence of the public. Their action in carrying out a Planning Commission function was val id in the present case under the

de facto officer doctrine.13

Amended Questions 2, 3, and 9 – Legality of adoption of 2005 Town Plan and 2007 Zoning Ordinances Because the Planning Commission was in de facto existence when it developed and recommended the 2005 Town Plan for adoption, and because it was in de facto existence as of preparation and adoption of the 200 7 Zoning Ordinance (and the Interim Ordinance later in 2007), all three of those documen ts were properly adopted and cannot now be challenged based on the irregularitie s of appointment of the Planning

Commission.

Even without the de facto officer doctrine, the 2005 Town Plan cannot now be challenged for the purported procedural defect of h aving been prepared by a Planning Commission whose members were improperly appointed by the Selectboard, as this challenge is made more than two years from the date of the Plan’s adoption. 24 V.S.A. § 4483(b) (“No person shall challenge for purported procedural defects 7 the validity of any plan . . . after two years following the day on which it would have taken effect if no defect had occurred.”).

Amended Question 11 – Authority to Consider Landsc aping, Screening,

Setbacks The authority to consider issues of landscaping, scr eening, and setbacks is found in the conditional use standards in § 4.16.2(c), whi ch incorporate a site plan standard, as allowed by 24 V.S.A. § 4414(3)(B)(iv). That provis ion states that conditional use standards may include requirements with respect to “[c]riteria adopted relating to site plan review pursuant to [24 V.S.A. §] 4416.” Plymouth has not adopted a subdivision ordinance or a section of the zoning ordinance setting out subdivision standards pursuan t to 24 V.S.A. § 4418. Instead,

7 The limitation in § 4483(a), covering only “minor or nonessential particulars,” does not apply once the two years has elapsed.14

subdivisions are allowed in the RD5 district as a c onditional use. Until the statutory changes effective July 1, 2004, it was only the ZBA ( in towns without a development review board) that had authority to rule on conditi onal use approval. The 2007 Plymouth Zoning Ordinance assigns the cond itional use approval task to the Planning Commission. Regardless of whether the Planning Commission was allowed to exercise this function prior to the 2004 statutory amendments, under the statute in effect in 2007, including the definition of “appropriate municipal panel,” a town is not precluded from assigning the Planning C ommission to perform a function formerly only assigned to the ZBA. 24 V.S.A. §§ 43 03(3), 4460(e).

Amended Question 13 – Affordable Housing Applicant has raised the question of whether the ap plication was deficient for failure to include “affordable housing.” As noted by the Town, this question does not extend to raise the issue of the degree to which § 4.16.2(g) incorporates by reference any provisions of the Town Plan. In any event, material facts are in dispute as to Amended Question 13, as the parties have not provided the Co urt with the application. However, the parties should be prepared to discuss the scope of § 4.16.2(g) at the conference that

has been scheduled in this matter.

The Plymouth Selectboard has, over the years, failed to follow the requirements of the state zoning enabling statute by failing to establish the length of term and number of members of the Planning Commission and of the ZB A, and by failing to make clear in the minutes of the Selectboard meetings that member s were being appointed concurrently to serve on both bodies. However, as d iscussed above, this failure does not retroactively invalidate the actions taken by e ither body, as the members of the Planning Commission/ZBA were acting as de facto officers under color of law and15

without challenge. It will be up to the Selectboar d to make corrections for the future,

and to determine whether it wishes instead to have a DRB to perform the regulatory functions of both bodies, while maintaining a separa te Planning Commission (with the same or different membership) to perform its planni ng functions. Similarly, the members of the Plymouth Planning Comm ission/ZBA, at least with respect to the present application, have not followe d the requirements of the Plymouth Zoning Ordinance to issue a separate decision of th e Planning Commission. § 4.14. This requirement applies even in instances in which the two bodies are holding a combined hearing on a project that requires review from both bodies, for example, conditional use review and a variance. § 4.14. It will be up to t he members of each body in the future, whether or not both bodies are composed of the same individuals, to specify whether any particular hearing or portion of a hearing is b eing held by the Planning Commission, the Zoning Board of Adjustment, or jointl y by both bodies under the provisions of § 4.14.

Accordingly, based on the foregoing, it is hereby ORD ERED and ADJUDGED

that the Town’s Motion to Dismiss is GRANTED as to Amended Question 16, and is otherwise DENIED. Summary judgment is DENIED as to Amended Question 13, as material facts are in dispute, or at least have not been provided to the Court. Otherwise, the Town’s Motion for Summary Judgment is GRANTED, and AppellantApplicant’s Motion for Summary Judgment is DENIED, a s to Questions 1, 2, 3, 4, 5, 8, 9,

and 11.

This decision leaves Amended Questions 6, 10, 12, 14, 1 3, 15, and 17 of the Statement of Questions to be resolved on the merits . A telephone conference has been scheduled (see enclosed notice), to discuss the timi ng of mediation, and trial. Please be prepared to discuss the parties’ positions as to th e degree to which § 4.16.2(g)16

incorporates by reference any provisions of the Tow n Plan, to resolve that issue prior to the parties’ preparing for trial.

Done at Berlin, Vermont, this 11 th day of September, 2009.

________________________________________________ _ Merideth Wright Environmental Judge