1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re Krag Special Zoning Permit for Culvert 1 } Docket No. 51-4-09 Vtec (Appeal of Marks) } }

Decision and Order on Pending Motions

Appellant Andrew Marks (Appellant) appealed from a decision of the Development Review Board (DRB) of the Town of Shelb urne, upholding the Zoning Administrator’s issuance of a special zoning permit to Appellee-Applicants David and Jesusa Krag (Applicants). The special zoning permi t authorized Applicants to install a fifteen-foot culvert on their property. Appellant is represented by Thomas F. Heilmann, Esq.; Appellee-Applicants are represented by Michae l T. Russell, Esq.; and the Town is represented by William E. Flender, Esq. Applicants have moved for summary judgment or to di smiss all nine questions in the Statement of Questions. The following facts are undisputed unless otherwise

noted.

Applicants own a 15.8-acre L-shaped parcel of prope rty, which contains their residence, located at 76 Rivervale Road in the Town of Shelburne. Applicants’ property is bounded on the north and west by the LaPlatte Ri ver, which makes a bend at the northwest corner of Applicant’s property. Appellant owns a 3.1-acre rectangular parcel of pro perty, which contains his residence, located at 150 Rivervale Road in Shelbur ne. Appellant’s property is bounded

1 This appeal was originally captioned In re Krag Excavation and Fill Permits . The caption has been changed to more correctly describe the permit that is the subject of this appeal.2

by the LaPlatte River on the west, bounded by Applic ants’ property to the north and east, and bounded by an unrelated property to the so uth. On July 2, 2008, the Zoning Administrator issued an e arlier zoning permit to Applicants, which authorized them to construct a ber m on their property (the Berm Permit). Prior to the issuance of the Berm Permit, Applicants’ property had contained two ponds: a spring-fed pond used for swimming (the swim pond) and a pond at a lower elevation on Applicants’ property fed by surf ace water (the lower pond). The Berm Permit authorized Applicants to dig a third po nd (the upper pond) and to use the fill extracted from the upper pond to construct a b erm, which was meant to prevent surface water from contaminating the swim pond. 2 Appellant did not appeal the issuance of the Berm P ermit to the DRB and it became final. 24 V.S.A. § 4472(d). It therefore c annot be challenged, either directly, or indirectly in the present appeal. See, e.g., In re : Freedom Foods , No. 243-10-08 Vtec, slip op. at 6 (Vt. Envtl. Ct. Mar. 19, 2009) (Wright , J.) (Where “Appellants did not appeal the issuance of the Zoning Permit to the DRB, . . . the zoning permit therefore cannot now be challenged, either directly, or indirectly in the present appeal.” (citing 24 V.S.A. § 4472(d))). The berm and upper pond were construc ted in accordance with the Berm Permit and are not at issue in this appeal. On September 18, 2008, Applicants submitted a new app lication for “Extraction[,] Filling[,] or Removal of Natural Resou rce.” (Ex. A). 3 The application sought approval to construct a

2 The parties have not provided a copy of the Berm Permit or the application for the berm project, and have not provided a map or plan sh owing the exact locations of the ponds or of the berm project. Nevertheless, no par ty suggests that any material facts are disputed as to the berm project.

3 No party suggests that this application was treat ed as requesting an amendment to the Berm Permit; rather, it appears to have been tre ated as a separate application requesting a new permit for the culvert project.3

15” pipe to reestablish flow from pond. Pipe end a t surface of pond. Pipe buried within berm. Exit a[t] existing water colle cting area. This fifteen-foot pipe, also referred to as a culver t, is located entirely on Applicants’ property and was intended to carry the flow of surface water from the area of the upper pond through the berm and into the low er pond, bypassing the spring-fed swim pond. The Zoning Administrator approved the culvert appli cation and issued Permit No. EF08-08 (the Culvert Permit) to Applicants on S eptember 26, 2008. (Ex. B). The Culvert Permit described the project as a “[p]ropos ed earthwork/outflow pipe associated with excavation and fill project,” and st ated that [t]his letter constitutes a Special Zoning Permit, u nder § 1720.2 of the Town of Shelburne Zoning Bylaws, authorizing the wor k associated with the on-going construction of a pond/berm on your pr operty. The project is approved as shown and described [in] the submitted application and site plan received by the Planning and Zoning Office on September 18, 2008. As stated in the Culvert Permit, the Zoning Administ rator reviewed and approved the proposed culvert project under § 1720. 2 of the Town of Shelburne Zoning Bylaws (Bylaws), which governs projects that involve the “Extraction, Filling or Removal” of “loam, gravel, stone, fill, topsoil or othe r similar materials.” 4 The preceding provision in the Bylaws, § 1720.1, gove rns projects that involve the “Diversion of Water Courses.” Even though Appl icants’ culvert project proposed to divert the flow of surface water, the Zoning Adminis trator did not require them to apply under § 1720.1 and did not review the proposa l under § 1720.1. Applicants only submitted a § 1720.2 application and the Zoning Adm inistrator only applied § 1720.2, stating that the culvert project was “associated wi th the on-going construction of a

4 The parties have provided only a five-page excer pt of the Bylaws, containing its title page, the table of contents, and pages 93 through 95, which contain the full text of § 1720.4

pond/berm on Applicants’ property.” Appellant appealed the Zoning Administrator’s issua nce of the Culvert Permit to the DRB. On March 4, 2009, the DRB upheld the Zoning Administrator’s decision granting the Culvert Permit to Applicants. 5 On April 1, 2009, Appellant appealed the DRB decision to this Court; as of that date, Applic ants had completed the culvert project in accordance with the Culvert Permit as issued by the Zoning Administrator.

Question 6 Question 6 of the Statement of Questions asks wheth er the Culvert Permit application should be “approved by this Court when much of the work for which the [Culvert Permit] was sought had already been comple ted prior to the time of the application in violation of the [Bylaws].” Applica nts have moved for summary judgment or to dismiss Question 6. Although commencement of construction in advance of obtaining a required zoning permit may be grounds for a municipality to issue a notice of violation and to bring an enforcement action under 24 V.S.A. §§ 4451 and 1452, no appeal has been filed with the Court relating either to a notice of viola tion or to the Zoning Administrator’s denial of a request to take enforcement action. Se e Application of Carrier , 155 Vt. 152, 161 (1990) (In an appeal of a permit approval, “the failure of the [applicants] to obtain the proper permits in a timely manner is not before [the Court].”); In re Keenan Conditional Use Approval , No. 266-12-07 Vtec, slip op. at 3 (Vt. Envtl. Ct. J une 4, 2009) (Durkin, J.) (The Court can “only address . . . enf orcement actions after such proceedings go through the proper municipal process es and are brought before this Court in a timely appeal.” (citing In re Maple Tree Place , 156 Vt. 484, 500 (1991))). In addition, Appellant has not provided any section of the Bylaws suggesting that the

5 The parties have not provided a copy of the Marc h 4, 2009 DRB decision.5

Zoning Administrator, and hence this Court in this d e novo appeal, must deny or decline to rule on an application for an as-built z oning permit. Accordingly, because the issue of whether the work w as completed in advance of the issuance of the permit is irrelevant to whether the Culvert Permit application should be granted or denied by this Court in this de novo appeal, Question 6 must be dismissed as beyond the scope of the present appeal

.

Question 5 Question 5 of the Statement of Questions asks, “[w]h en a culvert and water diversion are proposed as part of a proposed earthw ork, excavation and fill permit,” whether the provisions of both §§ 1720.1 and 1720.2 are applicable. 6 Applicants only submitted an application for a excavation and fill permit under § 1720.2, and the Zoning Administrator only reviewed the Culvert Permit appl ication under § 1720.2. Appellant argues that the application should instead be revie wed only under § 1720.1.

As this is a de novo appeal, the Court must independently determine whic h section or sections of the Bylaws are applicable to the culvert project at issue in this appeal. It appears from the application that the cu lvert or pipe is proposed to be “buried within [the] berm.” However, material fact s are in dispute, or at least have not been provided to the Court, as to whether the projec t involves any additional extraction of earth materials for use off the site, or any addi tional fill, beyond that which had already been approved in the Berm Permit. To the e xtent that it does propose such

6 As written, Question 5 is posed as an impermissib ly advisory hypothetical question: that is, whether both bylaw sections should be appli ed to any project proposing a culvert and water diversion in connection with an e arthwork project. See In re 232511 Investments, Ltd. , 2006 VT 27, ¶ 19, 179 Vt. 409 (stating that “any con clusion [the] court might reach” regarding a “hypothetical” question pr esented to it “would be advisory” (citing In re Bennington Sch., Inc. , 2004 VT 6, ¶¶ 18-19, 176 Vt. 584 (mem.)). For the purposes of the present motions, the Court will trea t Question 5 as asking whether both §§ 1720.1 and 1720.2 are applicable to the culvert project at issue in this appeal.6

activity, § 1720.2 is applicable. To the extent tha t it does not, § 1720.2 is not applicable to the culvert project. Similarly, material facts are in dispute, or at least have not been provided to the Court, as to whether the proposed culvert diverted, r edirected, or relocated any natural drainage or water runoff pattern, as those terms are used under § 1720.1. 7 To the extent that the proposed culvert had such an effect on a n atural drainage or water runoff pattern, § 1720.1 is also applicable. However, the application merely describes the culvert installation as being proposed to “reestabl ish” the “flow from pond.” To the extent that the culvert installation restored the p reviously existing natural drainage or water runoff pattern, § 1720.1 may not be applicable

. Under the present state of the undisputed facts, an evidentiary hearing is necessary to resolve Question 5, and therefore summ ary judgment must be denied. 8

7 Even if the Applicants’ four requests to admit, di scussed further below, are considered to be admitted, they only deal with the e ffect of the culvert project on drainage patterns on Appellant’s property; they do not resolve whether the culvert had any effect on the natural drainage pattern on Appli cants’ own property. Therefore, regardless of whether the admissions are or are not withdrawn, those admissions cannot by themselves resolve the issue of whether § 1720.1 applies to the project, as § 1720.1 could apply to a diversion located entirel y on Applicants’ own property.

8 The parties should note that, if § 1720.2 is appl icable to the culvert project, the Court has authority to proceed with the appeal on its mer its, as that is the type of permit for which Applicants applied and which the DRB had befo re it. On the other hand, if §1720.1 is applicable to the culvert project, then i t will be for the Zoning Administrator in the first instance, and then the DRB, to review an application for a special zoning permit under that section, as Applicants have not ap plied for a § 1720.1 permit and neither the Zoning Administrator nor the DRB consid ered the application under that provision. See In re King Garage Construction Permi t , No. 202-9-08 Vtec, slip op. at 9–10 (Vt. Envtl. Ct. July 9, 2009) (Durkin, J.) (stating t hat the Court’s “jurisdiction is limited to the application put forth for approval [below]” (ci ting In re Maple Tree Place , 156 Vt. 494, 499–500 (1991); In re Torres , 154 Vt. 233, 235)); id . at 11 (The court does “not have the authority to consider a land use application th at ha[s] not been first noticed and heard before the municipal panel below.” (citing To rres , 154 Vt. at 235–36)).7

Questions 1 and 4 Question 1 of the Statement of Questions asks wheth er the proposed culvert project is “permissible and appropriate under §§ 17 20.1 and 1720.2” of the Bylaws. Question 4 asks whether the application properly “a ddress[es] and fulfill[s] the criteria” of §§ 1720.1 and 1720.2 of the Bylaws. Applicants ask this Court to dismiss Questions 1 and 4 of the Statement of Questions under V.R.C.P. 12(b)(6), arguing that they are too vague to state a claim for which relief may be gran ted. As discussed in footnote 8, above, if § 1720.1 is app licable to the culvert project, this matter may have to be remanded to the Zoning A dministrator to consider an application under that section in the first instanc e. With regard to § 1720.2, if it is applicable to the culvert project, the question of whether the culvert project meets the “criteria” of § 1720.2, and therefore whether a “special zoning permit” should be issued for the cu lvert project in this de novo proceeding, is the issue on which Applicants have th e burden of proof at trial. 9 Questions 1 and 4 are therefore not too vague to st ate a claim for which relief may be granted, and the motion to dismiss them must be deni ed. However, they will be treated as presenting a single issue for the Court: whether Applicants’ culvert project meets the applicable provisions of § 1720.2 of the Bylaws.

9 Both parties refer to the subsections of §§ 1720.1 and 1720.2 as containing “criteria” or standards for the zoning administrator to apply in issuing the “special zoning permit” authorized by each respective section. The parties have not raised, and the Court does not address, the scope of a zoning administrator’s s tatutory authority to make the decisions or to impose the conditions authorized by §§ 1720.1 and 1720.2. See 24 V.S.A. § 4448(a) (“The administrative officer shall admini ster the bylaws literally and shall not have the power to permit any land development that is not in conformance with those bylaws.”).8

Questions 2, 3, and 8 Questions 2, 3, and 8 of the Statement of Questions e ach ask whether the culvert project will violate §§ 1720.1 and 1720.2 of the By laws by causing changes to the drainage patterns on Appellant’s property. Specifi cally, Question 2 asks whether the culvert project will “impermissibly increase and mo dify the amount of water draining on to Appellant’s property” in violation of those B ylaw sections. Question 3 asks whether “Applicants’ proposed earthwork, berm, and cu lvert impermissibly alter, change, modify and interfere with the natural draina ge patterns of the Applicants’ and Appellant’s respective properties” in violation of those Bylaw sections. Question 8 asks whether the culvert project will “create a nuisance under [§§ 1720.1 and 1720.2] in that water from the culvert, as well as the water diverte d because of the berm . . . and other construction on Applicants’ property[,] is flowing a nd will flow on to Appellant’s property and cause a nuisance or harm to Appellant’ s property” in violation of those Bylaw sections. Applicants have moved for summary judgment on Questions 2, 3, and 8, and have also moved to dismiss Questions 3 and 8 to the extent that they relate to the berm project. First, it is again important to emphasize that the o nly proposal within the scope of the present appeal is the project proposed in Ap plicants’ culvert project application. The project authorized under the Berm Permit, which was not appealed and became final, is not at issue and cannot be indirectly cha llenged in this appeal. 24 V.S.A. § 4472(d). Therefore, Question 3 as it relates to t he “berm” or any “earthwork” that was authorized under the Berm Permit, and Question 8 as it relates to “water diverted because of the berm” or because of any “other const ruction” not proposed in the culvert project application, must be dismissed as those issu es are beyond the scope of the current appeal. See, e.g., Appeal of Yates , No. 158-9-04 Vtec, slip op. at 6–9 (Vt. Envtl. Ct. Apr. 17, 2007) (Durkin, J.) (dismissing several i ssues “on the basis that they [were] impermissible collateral attacks on previous DRB ap provals and [were] therefore9

outside the scope of [the] appeal”). Question 2 and the remainder of Questions 3 and 8 a sk the Court to determine whether the proposed culvert project creates an “im permissible” increase in or modification of the drainage pattern, or creates a n uisance on or harm to Appellant’s property, that is “in violation of” §§ 1720.1 and 17 20.2 of the Bylaws. In interpreting and applying administrative rules o r regulations, such as the subsections of §§ 1720.1 and 1720.2, the Court appro aches regulatory construction in the same manner as statutory interpretation. In re Wil liston Inn Group , 2008 VT 47, ¶ 14, 183 Vt. 621 (citing Conservation Law Found. v. Burk e , 162 Vt. 115, 121 (1993)). As with a statute, the Court “will enforce the plain meaning of the [regulatory] language,” because the Court presumes that the municipality “i ntended the plain, ordinary meaning of the [regulatory] language.” In re Alber t , 2008 VT 30, ¶ 10, 183 Vt. 637 (internal citations omitted). See also Williston I nn Group , 2008 VT 30, ¶ 10 (The Court’s “overall goal is to discern the intent of the draft ers,” first and foremost “by reference to the plain meaning of the regulatory language.” (cit ing Slocum v. Dep’t of Soc. Welfare , 154 Vt. 474, 478 (1990))). Turning to the regulatory provisions at issue, § 172 0.1 requires submission of specific information related to the existence of an d quantity of any increases in runoff. See Bylaws §§ 1720.1(3), (4). Nothing in § 1720.1 a uthorizes the Zoning Administrator to impose conditions, and nothing in § 1720.1 estab lishes any criteria whose failure to be met could be construed as a “violation” of § 1720.1 . The only requirement of § 1720.1 is that a special zoning permit be obtained for any “d iversion, redirection or relocation of any natural water course, drainage or water runoff p attern.” By its terms, the only potential “violation” of § 1720.1 is the failure to obtain a special zoning permit for those activities, or the failure to provide the required i nformation with the application. In any event, if § 1720.1 is applicable, the Court will cons ider remanding the culvert permit application for consideration in the first instance by the Zoning Administrator. See10

footnote 8, above. On the other hand, § 1720.2 allows the Zoning Admini strator, and hence this

Court in a de novo appeal, to impose conditions relating to the “crea tion of a nuisance,” § 1720.2(A)(5), resulting from a project involving e xtraction, filling or removal of materials such as earth, gravel or stone. Neverthel ess, other than the prohibition regarding flood plain activity discussed in relatio n to Question 9, below, nothing in § 1720.2 establishes any criteria whose failure to be met could be construed as a “violation” of § 1720.2. Therefore, those portions of Question 2, and those po rtions of the remainder of Questions 3 and 8, that ask whether various effects of the culvert project are “in violation of” §§ 1720.1 and 1720.2 of the Bylaws ar e dismissed. The remainder of Questions 2, 3, and 8 relate to the other questions presented in this appeal. The remainder of Questions 2 and 3, ask ing whether the culvert project will “increase and modify the amount of water draining o n to Appellant’s property” or whether the culvert project will “alter, change, modi fy and interfere with the natural drainage patterns of Applicants’ and Appellant’s re spective properties,” relate to the Court’s task under Question 5 in determining whethe r § 1720.1 applies to the culvert project. If § 1720.2 applies to the culvert projec t, the remainder of Question 8, asking whether the project creates a nuisance, relates to t he Court’s task under Questions 1 and 4 in determining whether any conditions should be i mposed. The remainder of Questions 2, 3, and 8 therefore are not dismissed at this time; however, Appellant will be required to restate them to clarify what remains in this appeal

Question 7 Question 7 of the Statement of Questions asks wheth er the culvert project will “have an adverse effect on public health, safety, and welfare under [§§ 1720.1 and 1720.2].” Applicants have moved for summary judgme nt on Question 7.11

First, the only subsection of § 1720 addressing a pr oposed project’s effect on public health, safety, or welfare is found in § 1720. 2(A)(4); therefore, Question 7 must be restricted to § 1720.2. The reference in Question 7 to § 1720.1 must therefore be

dismissed. Under § 1720.2(A)(4), the Zoning Administrator is a uthorized to impose conditions on a special zoning permit “relating to,” among other factors, the proposal’s “[e]ffect on public health and safety and welfare.” If the culvert project requires a permit under § 1720.2, the Court will consider wheth er to impose conditions on the project under § 1720.2(A)(4) in the course of rulin g on the permit application in this de

novo appeal. Because material facts are in dispute, or at least h ave not been provided to the Court, as to whether the culvert project requires a permit under § 1720.2, as well as to whether the culvert project will have an effect on public health, safety, and welfare, and if so, what conditions are necessary in light of tha t finding, Question 7 of the Statement of Question remains for the merits of this appeal. Summary judgment as to Question 7

is therefore denied.

Question 9 Question 9 of the Statement of Questions asks wheth er the culvert project will “interfere with or reduce the flood stage capacity of Applicants’ and Appellants’ property in violation of the above[-]cited . . . By laws.” Applicants have moved for summary judgment on Question 9. First, the only regulation addressing “flood stage c apacity” is found in § 1720.2(B)(5); therefore, Question 9 must be restri cted to § 1720.2. The reference in Question 9 to § 1720.1 must therefore be dismissed. Section 1720.2(B)(5) “prohibit[s]” the excavation o f earth materials within the 100-year flood plain of the LaPlatte River “where t he activity proposed will lower the12

level of the water table, interfere with the natural flow patterns[,] or reduce the flood stage capacity.” Bylaws § 1720.2(B)(5). Material facts are in dispute, or at least have not been provided to the Court, regarding whether the culvert project involves any excavation of earth materials at all, beyond any excavation involved in the berm project covered by the final Berm Permit. If the culvert project does involve any excavation, material facts are in dispute, or at least have not been provided to the Court, regardin g whether such excavation will occur within the 100-year flood plain of the LaPlat te River. Further, if the culvert project does involves excavation within the 100-yea r flood plain, material facts are in dispute, or at least have not been provided to the C ourt, as to whether such excavation with reduce the flood stage capacity of the flood p lain area. Because material facts are in dispute, or at least h ave not been provided to the Court, summary judgment on Question 9 must be denied on the present record. However, at the scheduled telephone conference (see enclosed notice), please be prepared to discuss whether material facts are actu ally disputed as to Question 9, or whether any party wishes to present any supplementa l affidavits or motions for partial summary judgment prior to trial.

Applicants’ Requests to Admit and Appellant’s Motio n to Deem Answer Timely On November 30, 2009, Applicants served on Appellant a Request for Admission under V.R.C.P. 36. See V.R.C.P. 36 (permitting a p arty to serve upon any other party a request for the admission of fact, and establishing that “[t]he matter is admitted unless, within 30 days after service of the request . . . t he party to whom the request is directed serves upon the party requesting the admission a wr itten answer or objection addressed to the matter”). The request sought admission by A ppellant that each of the following

facts is true:13

1. Water from the culvert that is the subject of t he permit appealed exits onto the Appellees’ property, flows on Appellees’ pr operty into a pond on the Appellees’ property, flows from that pond throu gh a swale on Appellees’ property and then discharges into the La Platte River at a point on Appellees’ property (the “Drainage System”). 2. Water from the Drainage System does not flow on to Appellant’s property. 3. The natural drainage pattern of Appellant’s pro perty is not altered, changed, modified or interfered with by the Drainage System. 4. The Drainage System does not increase or modify the amount of water draining on to Appellant’s property. From the date of service, Appellant had thirty days to timely answer or object to the request, which gave him until December 29, 2009. Id . Appellant did not file an answer to the requests to admit by that date; there fore, under V.R.C.P. 36, the statements in the Request for Admission were admitt ed as of December 29, 2009. Id

. Appellant did not file an answer to the requests to admit until February 12, 2010, in which he denied all of the statements in the Req uest for Admission. However, as Appellant’s untimely answers did not withdraw or am end the admissions, on February 16, 2009, Appellant moved the Court to deem his answe rs timely, that is, to withdraw the admissions under V.R.C.P. 36. See V.R.C.P. 36( b) (“Any matter admitted under this rule is conclusively established unless the court o n motion permits withdrawal or amendment of the admission.”). In the motion to deem his answers timely, Appellan t cites several reasons explaining why his answer to the requests to admit was not filed in a timely fashion, including the presence of the holiday season, and se veral complex and time-sensitive matters that demanded the attention of his attorney s. The Court makes no finding that this neglect was excusable; however, “excusable negl ect is not a requirement for allowing withdrawal of admissions.” Record v. Kemp e , 2007 VT 39, ¶ 10, 182 Vt. 1714

(allowing withdrawal of an implied admission create d by failure to respond to request to admit). Under V.R.C.P. 36(b), “a court has discretion to all ow withdrawal of an admission if ‘the presentation of the merits of the action will be subserved’ by allowing withdrawal and the party who obtained the admission ‘fails to satisfy the court that withdrawal or amendment will prejudice that party i n maintaining the action or

defense on the merits.’” Id . (quoting V.R.C.P. 36(b)). All four of the requested admissions may be of grea t interest to any private property dispute between the parties, but they are p rimarily of importance in the present case to the extent that they may assist the Court in determining the jurisdictional fact of whether § 1720.1 applies to the culvert application. The presentation of the merits of the action as to that threshold jurisdictional fact will be served by allowing Appellant to withdraw the admiss ions and to present evidence as to whether the culvert itself causes a diversion, redir ection, or relocation of a natural water course, drainage or water runoff pattern, without reg ard to any such diversions created by work done under the Berm Permit. To that extent only, the requested admissions are “key issues” that are better left to the merits of this case. See id . (upholding a

withdrawal of an admission “because the facts that would be deemed admitted were ‘both key issues,’ such that ‘denying Plaintiffs’ mo tion [to withdraw the admissions] would essentially preclude a determination of the s ubstantive merits of the case” (citations omitted)). It is important to note that the requested admissio ns in the present appeal only relate to whether water from Applicants’ property f lows onto Appellant’s property. The requested admissions do not resolve whether the culvert itself has caused a diversion, redirection, or relocation of a natural wa ter course, drainage or water runoff pattern if it may have occurred solely on Applicant s’ own property, in which case § 1720.1 would be applicable even without any effec t on Appellant’s property.15

However, if the culvert itself has not caused any di version, redirection, or relocation of a natural water course, drainage or water runoff pat tern, then a special zoning permit under § 1720.1 is not required. Because the admiss ions do not resolve the question of whether § 1720.1 is applicable, Applicants have not shown that withdrawal of the admissions “will prejudice [them] in maintaining th e action or defense on the merits." Record v. Kempe , 2007 VT 39, ¶ 10. Therefore, for the limited purpose for which the iss ues are relevant to this appeal, withdrawal of Appellant’s admissions is app ropriate under V.R.C.P. 36(b). Accordingly, Appellant’s Motion to Deem Answers to A ppellees’ Requests for Admission as Timely Made, which the Court treats as a motion to withdraw the implied admissions and to replace them with the responses t o the requests to admit filed on February 12, 2010, is GRANTED.

Accordingly, based on the foregoing, it is hereby ORD ERED and ADJUDGED that Applicants’ Motion for Summary Judgment or to Dismiss is GRANTED in part and DENIED in part, as discussed above with respect to e ach question in the Statement of Questions. On or before March 15, 2010, Appellant sh all file a revised Statement of Questions, keeping the original numbering, and confor ming each remaining question or portion of a question to the rulings in this decisi on. Any objections to the wording of the revised Statement of Questions shall be filed o n or before March 22, 2010, so that they may be discussed at the telephone conference s cheduled for March 29, 2010. Appellant’s Motion to Deem Answers to Appellees’ Re quests for Admission as Timely Made, treated as a motion to withdraw the implied ad missions and to replace them with the responses to the requests to admit filed o n February 12, 2010, is GRANTED.

The hearing on the merits of this appeal remains sc heduled for May 4, 2010, to continue if necessary on May 5, 2010. However, at th e telephone conference now16

scheduled for March 29, 2010 (see enclosed notice), p lease be prepared to discuss whether the threshold facts of the scope of the cul vert project can or should be resolved in advance of that hearing, as those facts determine whether § 1720.2 applies at all to the culvert. If § 1720.2 does not apply to the culvert , all that will remain for trial is whether § 1720.1 applies. If § 1720.1 does apply, the matte r will have to be remanded for the Zoning Administrator in the first instance to deter mine whether a special zoning permit should issue for the culvert under § 1720.1. Simil arly, if § 1720.1 does not apply, the matter will have to be remanded for the Zoning Admi nistrator in the first instance to determine whether to act on the culvert application only under § 1710, which governs the issuance of zoning permits that do not require special zoning permits under either prong of § 1720.

Done at Berlin, Vermont, this 5 th day of March, 2010.

________________________________________________ _ Merideth Wright Environmental Judge