STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Appeal of Nott } Docket No. 141-6-00 Vtec }

Order Re: Motion for Stay and Motion for Summary J udgment

Appellant appealed from one condition of a decision of the Zoning Board of Adjustment of the Town of Hartford granting him Con ditional Use Approval for a Home Industry. Appellant is represented by William J. D onahue, Esq.; the Town is represented by Kimberlee J. Sturtevant, Esq. No other parties have entered an appearance.

Motion for Stay On December 1, 2000, Appellant moved for a stay of the Hartford ZBA = s decision, which the Court treated as a request to stay only C ondition 2 of the ZBA decision (as a stay of the entire decision would have left Appellant wi thout conditional use approval altogether). The request for stay was based on App ellant = s inability to fulfill his snow plowing contractual obligations without the use of the off-premises employees at issue in this appeal. On December 1, 2000, the Court grante d a temporary stay until further order of the Court after the Town would have had the oppo rtunity to respond to the Motion to Stay. The temporary stay was subject to a conditio n that no more than three employees (other than Appellant) at any time shall be on the property which is the subject of this appeal. The Town has now filed its response. The condition prohibiting more than three employees of the business, regardless of where they are located, is the subject of the motio n for summary judgment pending in this appeal. No other condition of the permit was appea led; accordingly all other findings and conditions remain in effect. This includes any req uirement that only Appellant = s personal vehicle may be parked on the site over night, and t he limitations on daily vehicular round trips to the property. Appellant must comply with all these conditions during the pendency of this appeal or face enforcement action from the Town, regardless of the ruling on the Motion for Stay.The purpose of the Court = s order on the Motion to Stay is to allow Appellant to fulfill

his contractual obligations, but to minimize the im pact of his business on the surrounding neighborhood, until the merits of the appeal of Con dition 2 are resolved, either by summary judgment or by a hearing. Appellant has shown that he will face irreparable injury if he is prohibited from employing more than three persons o ff-site during the pendency of the appeal. He has not appealed or alleged harm from any other conditions. We cannot find that the public interest will be harmed if a limite d stay is granted and all other conditions of the permit are met. Accordingly, the Motion for St ay is GRANTED in PART, as follows,

until further order of the Court.

Appellant may employ more than three persons off-si te in his business, but no more than three employees may be on the property at any time, and no more than a total of ten round trips of vehicles may occ ur in any day, allocated as four round trips by Appellant and a total of six round t rips for the total of Appellant = s employees. (See Finding Paragraph 16 of the decisi on on appeal). The Court recognizes that this requirement may mean that cert ain employees or vehicles must be dispatched by Appellant without their coming to the property in any given day or

storm.

Motion for Summary Judgment & A Record on Appeal @ On December 14, 2000, Appellant filed his motion fo r summary judgment, and also

filed a A Record on Appeal @ consisting of a copy of the Zoning Regulations and copies of documents from the Zoning Administrator = s file. The Court hereby retains the Zoning Regulations for use in connection with the Motion f or Summary Judgment and is returning to Attorney Donahue with this Order the remainder o f the documents, as no A record @ is to

be forwarded to the Court in a de novo appeal. V.R.C.P. 76(e)(4)(B). If any of those documents is necessary for Appellant = s Motion for Summary Judgment, they may be submitted if appropriate pursuant to V.R.C.P. 56. We also note that we have a hearing date which m ay become available for this case in Woodstock on January 24, 2001. Accordingly, whi le the parties = summary judgment schedule now expires with any reply memo being file d on January 25, the parties may wish

to accelerate the schedule to allow the Court to co nsider and decide the motion in advanceof that date so that it could be used if necessary for any remaining issues on the merits.

Please advise the court on or before January 4 of a ny such change in the summary judgment briefing schedule; if a telephone conferen ce is necessary it may be held on January 5, 2001.

Done at Barre, Vermont, this 26 th day of December, 2000.

_________________________________________________ Merideth Wright Environmental Judge