1 STATE OF VERMONT SUPERIOR COURT - ENVIRONMENTAL DIVISION

{ In re: Conlon Subdivision/Conditional { Docke t No. 2-1-12 Vtec Use Application 1 { (Appeal from Plymouth Planning Comm.) {

Judgment Order John and Julia Baldwin (“Appellants”) have appealed a decision by the Town of Plymouth Planning Commission (“the Commission”) gra nting conditional use approval to Edward Conlon and Debra Staniscia (“Applicants”) to subdivide a 13±-acre property at 441 Weaver Hill Road in the Town of Plymouth, Vermont. Appellants initially asked this Court to remand the application to the Commission due to alleged deficiencies in the application material s and the Commission’s procedures. We denied Appellants’ remand request, citing precedent directing this Court to conduct a de novo trial and hear evidence on an appealed application “as though no action whatever had been held prior thereto.” In re Conlon CU Permit [Entry Order on Remand Request], No. 2-1-12 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Aug. 30 , 2012) (Durkin, J.)(quoting in part Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989))(other ci tations omitted). Appellants also sought permission to “augment and a mplify” their previously filed Statement of Questions. The Court denied this requ est, concluding that augmentation and amplification were neither necessary nor permitted under our procedural rules. In re Conlon CU Permit [Entry Order on Motion to Augment SoQ], N o. 2-1-12 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.). Appellants also filed a motion for summary judgment , asserting that the Court should “dismiss[], revoke[][,] and den[y] in its entirety and with prejudice” Applicants’ conditional use application. (Appellants’ Motion for Summary Judgm ent, filed May 8, 2012.) Appellants’ assertion was based upon their reading of a provisi on of a prior Act 250 permit that governed development on Applicants’ property. Applicants re sponded by acknowledging that they could not commence new development before receiving all necessary state and municipal

1 The caption originally assigned to this appeal wa s In re Conlon Conditional Use Permit. During tria l, the Court determined that the caption needed to be revised to more accurately reference the contents o f the application that is the subject of this appeal.2

permits. They disagreed, however, with Appellants’ argument that the existing Act 250 permit prohibited them from first seeking municipal approv al of any proposed new land development. The Court agreed with Applicants’ interpretation of the permit language and precedent and denied Appellants’ summary judgment request. In re Conlon CU Permit [Entry Order on Motion for Summary Judgment], No. 2-1-12 Vtec, slip op. at 1–2 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.). Appellants filed an eight-page, single-spaced State ment of Questions, reciting twentyfive Questions, with subparts comprised of forty-se ven individual paragraphs. Many of Appellants’ Questions took issue with how the Commi ssion provided notice, allowed for dissemination of materials, conducted its hearing, and rendered its decision. See Appellants’ Statement of Questions, filed Jan. 30, 2012. In re sponse, Applicants moved to dismiss eighteen of Appellants’ twenty-five Questions under V.R.C.P. 12(b)(6), for failure to state claims for which this Court could grant relief as a matter of law in the pending appeal. Appellants appeared then and at trial as self-repre sented litigants. The Court noted the importance of affording pro se litigants the benefi t of all doubts and inferences to prevent any unfair prejudice they may experience due to their u nfamiliarity with litigation practices. In re Conlon CU Permit [Entry Order on Motion to Strike Q uestions], No. 2-1-12 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.)(citing Earth Constr., Inc. v. Vermont Agency of Transp., 2005 VT 82, ¶ 14, 178 Vt. 620 (m em.)). The Court declined to strike ten of the eighteen Qu estions that Applicants challenged in their dismissal motion, concluding that a final det ermination on those and the remaining Questions was best left for the trial. The Court d ismissed Appellants’ Questions 7, 10, 11, and 19 and afforded Appellants an opportunity to clarif y four remaining Questions (Questions 12, 15, 16, and 18). Id. at 3. Appellants thereafter filed a document with the fol lowing two headings: “Questions 12 & 18 Revised and Merged” and “Questions 15 & 16 Rev ised and Merged.” See Appellants filing of Oct. 26, 2012. This filing contained mostly fac tual assertions and few legal questions. The Court ultimately allowed the revised and merged Que stions 12 and 18 to remain, but struck Appellants’ Questions 15 and 16. In re Conlon CU P ermit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Feb. 5, 2013) (Durkin, J.). The matter was then scheduled for trial.3

On the morning of trial, the Court visited the part ies’ respective properties. The Court found this site visit helpful, as it provided conte xt for the testimony and other evidence received at trial. However, the Court cautioned, both on si te and at the beginning of trial, that comments and observations made during the site visit were no t evidence and would not be relied upon by the Court in making its factual determinations, oth er than for contextual purposes. At trial, the Court allowed all parties an opportun ity to present evidence that was relevant to Appellants’ remaining Questions 1–6, 8, 9, 12–14, 17, 18, and 20–25. Once the parties completed their respective presentations of evidenc e, the Court took a recess to review its trial notes and conduct legal research. When the Court r econvened the hearing, it recited its Findings of Fact and Conclusions of Law on the reco rd of the merits hearing. This Judgment Order is issued to provide a summary of the Finding s and Conclusions announced at trial; readers that wish to review the Court’s Findings an d Conclusions in detail are referred to the merits hearing record. We offer the following summ aries of the Court’s determinations: First, to the extent that Appellants renewed at tri al their request that the Court remand the pending application to the Commission, the Cour t DENIED that request. Second, the Court noted that any determination of t he location of property in relation to Town zoning districts is governed by the zoning dis tricts map that was incorporated into the adopted zoning and subdivision regulations. A copy of the Town of Plymouth Zoning Districts Map was admitted into evidence as Town Exhibit BB. That map identifies Applicants’ 13±-acre parcel on Weaver Hill Road. Slightly less than hal f of Applicants’ property is located in the Rural Densities Ten Acre District (“RD-10 District” ); slightly more than half of Applicants’ property is located in the Rural Densities Five Acr e District (“RD-5 District”). The boundary line between these two zoning districts bisects bot h of Applicants’ proposed lots. The Town of Plymouth Zoning Ordinance (“Ordinance”) does not speak to which district regulations apply when a proposed lot lies in more than one zoning district. Because zoning ordinances are in derogation of private prop erty rights, we are directed to interpret them narrowly. Rutland v. Keiffer, 124 Vt. 357, 36 0 (1964). Therefore, in the absence of guidance from the Ordinance, the Court concluded th at the less onerous zoning regulations must apply, particularly since the pre-existing dev elopment is located in the RD-5 District. Here, the 5-acre minimum of the RD-5 District, rath er than the 10-acre minimum of the RD-10 District, applies to Applicants’ parcel.4

Applicants propose to subdivide their property into two lots. Applicants’ existing home and out buildings will be located on one 7.7± acre lot and they plan to build a single family residence, to be supported by an on-site wastewater disposal system, on the second 6.0± acre lot. However, Applicants have not yet submitted th e application and detailed plans necessary to receive a zoning permit for the second planned r esidence. Third, the Court determined that both of the propos ed lots conform to the RD-5 District’s size, setback, and lot frontage minimums and that the proposed uses are permitted in that zoning district. Forth, the Court felt compelled to advise that it b elieved Appellants had misinterpreted the applicable provisions of the Town of Plymouth T own Plan, the Ordinance, and the minutes from the Planning Commission hearings on Applicants ’ application. Their misinterpretation led Appellants to present arguments that the Court found inapplicable to its consideration of the pending application. In particular, Mr. Baldwi n relied upon non-mandatory and aspirational language from the Town Plan in his arg uments against the pending application. The Court explained that while the aspirational lan guage in a Town Plan may provide helpful guidance for what a town wishes to see in its futur e development, such non-regulatory language may not be relied upon in the denial of a land use application. See In re Appeal of Wesco, 2006 VT 52, ¶ 33, 180 Vt. 520 (noting that a municipal plan is only a guide and does not have “the force and effect of a legislative enactme nt”)(internal quotation omitted). Lastly, the Court addressed the criteria for condit ional use approval, contained in Ordinance § 4.16. The Court first noted that Appli cants had provided adequate information within and attached to their application to satisfy all the application submission standards contained in Ordinance § 4.16.1. The Court then co nsidered the criteria established for conditional use review, contained in Ordinance § 4. 16.2, and concluded that the Applicants’ proposed subdivision did not result in an undue adv erse impact under any of the criteria listed in Ordinance §§ 4.16.2(a) through (j), subject to t he conditions specified on the record and

summarized below. Based upon the Court’s stated Findings and Conclusi ons, the Court announced its

APPROVAL of Applicants proposed subdivision, conditioned as follows:

1. Any lighting added to the existing buildings or pro posed on the yet-to-be approved residence shall be shielded and the lighting shall only cast its illumination downward; no pole lights shall be permitted; light levels sha ll not exceed IESNA recommended5

standards; and timers, dimmers, or similar devices shall be used on outside lighting, so as to eliminate unneeded lighting and reduce overal l energy consumption, all in accordance with Ordinance § 3.15 regarding Outdoor Lighting.

2. Applicants shall secure and submit to the Town of P lymouth Zoning Administrator, within thirty days from this approval becoming fina l, a site plan prepared and stamped by a licensed land surveyor or engineer, with the a ppropriate certificate from her or him, conforming to the site plan presented at trial. Se e Exhibit D.

3. The Planning Commission approval for the constructi on of a single family, 1.5 story residence on the 6.0± acre lot is hereby RESCINDED and VOIDED , since no specific plans or application were presented for approval. Prior to beginning any construction on the 6.0± acre lot, Applicants shall apply for an d receive all necessary municipal and state land use permits for development of that seco nd lot.

This completes the current proceedings before this Court on this application.

Done at Berlin, Vermont this 28th day of October, 2 013.

Thomas S. Durkin, Environmental Judge