1 Appellant had appealed the 2007 DRB decision to this Court in Docket No. 143-7-

07 Vtec. In this Court’s October 31, 2007 decision in that appeal, the Court vacated the 2007 DRB decision on the basis that reopening the 2003 C onsent Order to eliminate the condition precluding drive-through service had not been done, and was a prerequisite to PetitionerApplicant’s making the new application to the DRB . If Petitioner-Applicant’s present motion were to be granted, it still would not vest this Court with jurisdiction over the merits of the 2006 site plan amendment, it would on ly allow Applicant to make his application to the DRB.

1 STATE OF VERMONT

ENVIRONMENTAL COURT
} In re: Appeal of Cumberland Farms } Docket No. 196- 9-02 Vtec (Dunkin’ Donuts Site Plan Application) } }
Decision and Order on V.R.C.P. 60(b)(5) Motion for Relief from Consent Order Petitioner-Applicant Damartin Quadros has moved und er V.R.C.P. 60(b)(5) for relief
from a consent order entered in this matter in 2003 , and requests that the Court “approve the 2006 site plan as approved by the DRB [in 2007] .” 1 The above-captioned appeal was originally brought b y Appellant Cumberland Farms, Inc., from a site plan approval decision of the then-Planning Commission of the City of Montpelier. Appellant is represented by Jon T. Anderson, Esq., and David W. Rugh, Esq., and Petitioner-Applicant is represented by Ro bert Halpert, Esq. and Stephen L. Cusick, Esq. The City of Montpelier is represented by Amanda S.E. Lafferty, Esq., but did not file memoranda on the present motion. Petitioner-Applicant had first applied for site pla n approval in 2001 to remove an existing building and to construct a Dunkin’ Donuts restaurant and retail store at the subject property on Berlin Street (U.S. Route 2). That application was denied by the2 It is in the nature of development proposals thatthey may change over time, as

circumstances change. The statute contemplates suc h changes in 10 V.S.A. § 4470(a), the City’s ordinance also provides for it in § 207. As this Court explained in In re R.L. Vallee PUD (Spillane’s) , Docket No. 100-5-07 Vtec, slip op. at 4 (Vt. Envtl . Ct., Aug. 17, 2007), a successive application may generally be presented t o the DRB if there has been a substantial change in the law or the external circu mstances, or in the application itself, especially if the application has been redesigned t o address concerns that caused a previous denial. The standard for a DRB to determine whether it wishes to consider an application for an amended site plan may be similar in some res pects to the standard for vacating a consent decree, but it is by no means identical, as discussed below. In any event, the issue of whether the 2006 site plan amendment applicationmay be considered as a successive application is not before the Court in this appeal.

2 Planning Commission for several reasons, including problems with traffic access and circulation resulting from a drive-through lane and drive-up window proposed in the 2001 application. No party appealed the denial, and it b ecame final. Instead, in 2002, Petitioner-Applicant filed a revi sed application for site plan approval for the construction of the same project, but without a drive-through lane or drive-up window. The Planning Commission approved the revised site plan. In September of 2002, Appellant Cumberland Farms, Inc. , adjoining the property on its western boundary, filed the above-captioned appeal of the 2002 site plan approval in
Environmental Court. The parties settled the appeal just prior to a sche duled trial. They stipulated to a Court order (the 2003 Consent Order). Essential to understanding the procedural posture o f the attempted amendment application is the fact that the 2003 Consent Order did not merely grant site plan approval with agreed conditions for the construction of the Dunkin’ Donuts restaurant and retail store. If the 2003 Consent Order had done so, then any proposed amendment or successive application could simply have gone before the DRB, and any issues as to the propriety of a successive application 2 would have properly come to the court on appeal fr om the DRB3 The condition regarding parking spaces was part o f the site plan approval, and in

any event was the subject of an unappealed amendmen t to the site plan approval. Therefore, unlike the proposed amendment regarding the drive-through service, any proposed amendment to the number or configuration o f the parking spaces is a question of successive application for the DRB in the first instance, and not for this Court.

3 (as was attempted prematurely in Docket No. 143-7-0 7 Vtec). That is, in the absence of the 2003 Consent Order, Petitioner-Applicant would only have had to apply to the DRB for an amended site plan, regardless of whether the 2003 s ite plan had been approved by the DRB without appeal, or had been approved by this Court d e novo

. By contrast, in the present case, the 2003 Consent Order contained two specific
conditions that were conditions of the consent orde r itself . That is, they were conditions of the settlement of the appeal in this Court. The 2003 Consent Order also contained some stipulated changed conditions of the site plan appr oval for the construction of the building.
The two conditions of the 2003 Consent Order itself are found in Paragraph 3: “[d]eliveries of product to the project shall not occur during th e hours of 7:00 a.m. [to] 9:00 a.m.;” and in Paragraph 5: [t]he project shall not include a d rive-up service window or drive-through
service.” The project was constructed without the drive-up se rvice window or drive-through service, and has been operating for approximately th ree-and-a-half years. Without moving for relief from the condition impose d by Paragraph 5 of the 2003 Consent Order, in 2006 Applicant applied to the DRB for site plan approval of “the addition of a drive-through lane” at the project pr operty, including changes to the access and circulation of the site, the installation of a drive-up window and speaker, and the elimination of parking spaces. 3 In June of 2007 the DRB approved the changed site p lan, including the drive-up window and speaker and drive-through service. The DRB decision also required Applicant4In that decision, the Court specifically did not r each the question of whether any

factors warranted a successive application, or whether § 307 of the ordinance allows such an application regardless of those factors. Petiti oner-Applicant’s memoranda (e.g. , January 22, 2008 at p. 4) characterize the Court as determining in the present case ‘whether the successive application doctrine applies’ or as ‘app lying the standards in § 307 for amending a site plan.’ To the contrary, all that the Court i s doing in the present case is to determine whether Petitioner-Applicant has shown grounds to v acate or change the 2003 Consent Order under V.R.C.P. 60(b)(5). If the Court were t o grant relief from the 2003 Consent Order, then at that time it would be necessary to d etermine whether to remand the whole application to the DRB for it to consider an amende d site plan application (as the 2002 application did not include a drive-through proposa l). See Cliche v. Cliche , 143 Vt. 301, 307 (1983).

5 See footnote 1, above.

4 to perform a follow-up traffic study for one year, after which “Applicant will address any issues raised by staff review of the traffic study. ” The 2007 DRB decision did not analyze the application under 24 V.S.A. § 4470(a) or explai n why it was an acceptable successive or amendment application, except to state, in paragrap h 2 of its findings, that “[a]n additional change is the passage of time and experience with the site in the three years since the original application.” Appellant appealed the 2007 DRB decision to this Co urt in Docket No. 143-7-07 Vtec. As noted in footnote 1, above, this Court vacated the 2007 DRB decision on the basis that reopening the 2003 Consent Order to eliminate the c ondition precluding drive-through service was a prerequisite to Petitioner-Applicant’ s making that new application 4to the DRB. Petitioner-Applicant appealed that decision t o the Vermont Supreme Court; it has been assigned Docket No. 2007-468 at the Supreme Co urt. Petitioner-Applicant then filed the present motion in the above-captioned case, seeking relief from the 2003 Consent Order under V. R.C.P. 60(b)(5) and approval 5 of the 2006 site plan amendment.5

As this Court explained in the October 31, 2007 Dec ision and Order in Docket No. 143-7-07 Vtec, slip. op at 3: In general, “[o]nce a stipulation is incorporated in to a final order, concerns regarding finality require that the stipulation be susceptible to attack only on grounds sufficient to overturn a judgment.” Pouechv. Pouech, 2006 VT 40, ¶ 20, 180 Vt. 1, 11. That is, once a party agrees t o a stipulation, that party is bound by it, and the course of the trial is determi ned by it. Eurich v. CoffeeRich, Inc. , 130 Vt. 537, 542 (1972); Cooper v. Savage , 145 Vt. 223, 225 (1984). The parties are similarly bound by a final order in corporating the stipulation, unless the court that issued the final order grants a party relief from that final order. Pouech, 2006 VT 40, ¶ 20; Dunbar v. Gabaree , 135 Vt. 269, 270–71 (1977). In moving for relief from the 2003 Consent Order th at incorporated the parties’ stipulation, Petitioner-Applicant argues under V.R. C.P. 60(b)(5) that the new proposed changes to the site plan make it “inequitable to co ntinue to enforce the prohibition on the drive-through” to which he had agreed in 2003. Generally, V.R.C.P. 60(b) “does not operate to prot ect a party from freely made tactical decisions which in retrospect may seem ill advised.” Wild v. Brooks , 2004 VT 74, ¶ 20, 177 Vt. 171, 180; Juster v. Juster , 2007 VT 111, ¶ 4; and see, e.g. , Goshy v. Morey , 149 Vt. 93, 97 (1987). Relief from one aspect of a sti pulation (e.g. , no drive-through service) without vacating the remainder of the stipulation ( e.g. , approval of construction of the building) is particularly disfavored because “the g ranting of partial relief alters the parties’ original agreement and generally causes one of the parties to bear the burdens of the agreement while foregoing its benefits.” Hood v. H ood , 146 Vt. 195, 197 (1985). V.R.C.P. 60(b)(5) provides, like the analogous fede ral rule, that the court may relieve a party from a final judgment or order for the reas on that the judgment has been satisfied, or a prior judgment on which it is based has been r eversed or otherwise vacated, or that “it is no longer equitable that the judgment should have prospective application.” This relief is available with respect to judgments, including consent judgments, that6

have prospective effect. “It does not allow reliti gation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes enforcement [of the judgment or decree] inequitable.” 11 Wright, Mil ler & Kane, Federal Practice and Procedure: Civil2d § 2863, text at n.19. Justice C ardozo stated the basic principles in United
States v. Swift & Co. , 286 U.S. 106, 119 (1932): Life is never static, and the passing of a decade h as brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are so important that the dangers, once sub stantial, have become attenuated to a shadow. No doubt the defendants wi ll be better off if the injunction is relaxed, but they are not suffering h ardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrongevoked by new and unforeseen conditions should lead us to change whatwas decreed after years of litigation with the consent of all concerned. These principles have been restated and followed infederal cases into the present day, See,
e.g. , Humble Oil & Refining Co. v. American Oil Co. , 405 F.2d 803, 813 (8 thCir., 1969), cert. denied, 395 U.S. 905 (“caution, substantial change, u nforeseenness, oppressive hardship, and a clear showing are the requirements”), with so me modifications giving flexibility in institutional reform litigation. Rufo v. Inmates o f Suffolk County Jail, 502 U.S. 367 (1992). See Sierra Club v. Meiburg, 296 F.3d 1021, 1033–34 (11 thCir. 2002) (order modifying consent decree reversed, as statutory and regulatory regime had not changed since consent decree originally entered, [delay in implementation] did n ot rise to the level of a changed circumstance, and nothing had changed to make the co nsent decree ineffective). As followed by the Vermont Supreme Court in J.L. v. Miller , 158 Vt. 601, 604 (1992), also an institutional reform case, the standards art iculated in Rufo require that: A party seeking modifications under Rule 60(b)(5) n ow has the burden of showing either a “significant change in factual con ditions or in law.” Modification of a decree is warranted when “changed factual conditions make compliance . . . substantially more onerous.” * * * The Court cautioned, however, that notwithstanding a more fle xible approach,7

clarifications in the law do not provide a basis fo r modification unless the parties had “based their agreement on a misundersta nding of the governing law,” and that Rule 60(b)(5) provides relief when co ntinued enforcement of the decree would be inequitable, not merely inconve nient. To hold otherwise, the Court noted, would “open the door fo r relitigation of the merits of every affected consent decree[,] would und ermine the finality of such agreements and could serve as a disincentive t o negotiation of settlements . . . .“ J.L. v. Miller , 158 Vt. at 604 (internal citations to Rufo omitted). Although courts recognize that “it should be genera lly easier to modify an injunction in an institutional reform case than in other kinds of cases,” courts have applied the Supreme Court’s summary in Rufo of “what might render a modification ‘equitable’” to other types of injunctive relief. N.L.R.B. v. H arris Teeter Supermarkets , 215 F.3d 32, 35 (D.C. Cir. 2000) (citing United States v. Western E lec. Co. , 46 F.3d 1198, 1203 (D.C. Cir. 1995)). Essentially, the movant has the “burden of demonstrating events or changed facts that ‘make compliance with the decree substantially more onerous,’ make the decree ‘unworkable because of unforeseen obstacles,’ or mak e ‘enforcement [of the decree] detrimental to the public interest.’” Harris Teeter , 215 F.3d at 35. “Self-imposed hurdles and hurdles inherent in a consent decree’s entry do not count as ‘obstacles.’” Id . at 36. Petitioner-Applicant has not met this burden. He h as not come forward with evidence of any changed circumstances that make com pliance with Paragraph 5 of the 2003 Consent Order substantially more onerous than it wa s when Petitioner-Applicant agreed to the condition in order to settle the appeal, bui ld his building, and open for business. Petitioner-Applicant has not come forward with evid ence of any changed circumstances that make compliance with Paragraph 5 of the 2003 C onsent Order unworkable because of any unforeseen obstacles; indeed, the only obsta cle is by definition not “unforeseen” as it is that contained in Paragraph 5 itself. Nor ha s Petitioner-Applicant come forward with evidence that continued imposition of Paragraph 5 of the 2003 Consent Order is in any8

way detrimental to the public interest. Indeed, Petitioner-Applicant has not even come forw ard with an affidavit or other
evidence to counter the affidavit of Robert Chamber lin, P.E., submitted by Appellant. Petitioner-Appellant has not come forward with evid ence to support a claim that any traffic characteristics on Route 2 (Berlin Street) have cha nged or that the new proposed site plan would prevent the problem of traffic queuing for th e drive-through lane thereby causing a back-up of traffic into or an impediment to the f ree flow of traffic on Route 2 affecting Appellant’s neighboring driveway onto Route 2. See Keith v. Mullins , 162 F.3d 539, 541 (1998) (modification of injunction not justified “o n the present record;” on remand “[i]f either party shows the existence of a genuine issue of material fact relevant . . . [the trial court] should hold an evidentiary hearing.”) Thus, regardless of whether this proposed amendmentto the approved site plan could have been considered by the DRB in the absenc e of the 2003 Consent Order, on the present showing it does not warrant relief under V. R.C.P. 60(b)(5) from the provisions of the 2003 Consent Order. Accordingly, based on the f oregoing, it is hereby ORDERED and ADJUDGED that Petitioner-Applicant’s Motion under V.R.C.P. 60(b)(5) for relief from the
2003 Consent Order is DENIED.

Done at Berlin, Vermont, this 18 thday of April, 2008.

_________________________________________________ Merideth Wright Environmental Judge