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STATE OF VERMONT 

SUPERIOR COURT - ENVIRONMENTAL DIVISION 

 { 

In re: Conlon Subdivision/Conditional { Docket No. 2-1-12 Vtec 

 Use Application1 { (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”) granting 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 materials 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 citations omitted). 

Appellants also sought permission to “augment and amplify” their previously filed 

Statement of Questions. The Court denied this request, 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], No. 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 Judgment, filed May 8, 2012.) Appellants’ 

assertion was based upon their reading of a provision of a prior Act 250 permit that governed 

development on Applicants’ property. Applicants responded by acknowledging that they 

could not commence new development before receiving all necessary state and municipal 

 

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 The caption originally assigned to this appeal was In re Conlon Conditional Use Permit. During trial, 

the Court determined that the caption needed to be revised to more accurately reference the contents of 

the application that is the subject of this appeal.
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permits. They disagreed, however, with Appellants’ argument that the existing Act 250 permit 

prohibited them from first seeking municipal approval 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 Statement of Questions, reciting twentyfive Questions, with subparts comprised of forty-seven individual paragraphs. Many of 

Appellants’ Questions took issue with how the Commission provided notice, allowed for 

dissemination of materials, conducted its hearing, and rendered its decision. See Appellants’ 

Statement of Questions, filed Jan. 30, 2012. In response, 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-represented litigants. The Court noted the 

importance of affording pro se litigants the benefit of all doubts and inferences to prevent any 

unfair prejudice they may experience due to their unfamiliarity with litigation practices. In re 

Conlon CU Permit [Entry Order on Motion to Strike Questions], 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 (mem.)). 

The Court declined to strike ten of the eighteen Questions that Applicants challenged in 

their dismissal motion, concluding that a final determination on those and the remaining 

Questions was best left for the trial. The Court dismissed Appellants’ Questions 7, 10, 11, and 

19 and afforded Appellants an opportunity to clarify four remaining Questions (Questions 12, 

15, 16, and 18). Id. at 3. 

Appellants thereafter filed a document with the following two headings: “Questions 12 

& 18 Revised and Merged” and “Questions 15 & 16 Revised and Merged.” See Appellants filing 

of Oct. 26, 2012. This filing contained mostly factual assertions and few legal questions. The 

Court ultimately allowed the revised and merged Questions 12 and 18 to remain, but struck 

Appellants’ Questions 15 and 16. In re Conlon CU Permit, 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. 
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On the morning of trial, the Court visited the parties’ respective properties. The Court 

found this site visit helpful, as it provided context for the testimony and other evidence received 

at trial. However, the Court cautioned, both on site and at the beginning of trial, that comments 

and observations made during the site visit were not evidence and would not be relied upon by 

the Court in making its factual determinations, other than for contextual purposes. 

At trial, the Court allowed all parties an opportunity 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 evidence, the Court took a recess to review its trial 

notes and conduct legal research. When the Court reconvened the hearing, it recited its 

Findings of Fact and Conclusions of Law on the record of the merits hearing. This Judgment 

Order is issued to provide a summary of the Findings and Conclusions announced at trial; 

readers that wish to review the Court’s Findings and Conclusions in detail are referred to the 

merits hearing record. We offer the following summaries of the Court’s determinations: 

First, to the extent that Appellants renewed at trial their request that the Court remand 

the pending application to the Commission, the Court DENIED that request. 

Second, the Court noted that any determination of the location of property in relation to 

Town zoning districts is governed by the zoning districts 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 half 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 Acre District (“RD-5 District”). The boundary 

line between these two zoning districts bisects both 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 property rights, we are directed to interpret 

them narrowly. Rutland v. Keiffer, 124 Vt. 357, 360 (1964). Therefore, in the absence of 

guidance from the Ordinance, the Court concluded that the less onerous zoning regulations 

must apply, particularly since the pre-existing development is located in the RD-5 District. 

Here, the 5-acre minimum of the RD-5 District, rather than the 10-acre minimum of the RD-10 

District, applies to Applicants’ parcel. 
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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 the application and detailed plans necessary 

to receive a zoning permit for the second planned residence. 

Third, the Court determined that both of the proposed 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 believed Appellants had misinterpreted 

the applicable provisions of the Town of Plymouth Town 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. Baldwin relied upon non-mandatory and 

aspirational language from the Town Plan in his arguments against the pending application. 

The Court explained that while the aspirational language in a Town Plan may provide helpful 

guidance for what a town wishes to see in its future 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 enactment”)(internal quotation omitted). 

Lastly, the Court addressed the criteria for conditional use approval, contained in 

Ordinance § 4.16. The Court first noted that Applicants 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 considered 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 adverse impact under any of the criteria listed 

in Ordinance §§ 4.16.2(a) through (j), subject to the conditions specified on the record and 

summarized below. 

Based upon the Court’s stated Findings and Conclusions, the Court announced its 

APPROVAL of Applicants proposed subdivision, conditioned as follows: 

1. Any lighting added to the existing buildings or proposed 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 shall not exceed IESNA recommended 
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standards; and timers, dimmers, or similar devices shall be used on outside lighting, so 

as to eliminate unneeded lighting and reduce overall energy consumption, all in 

accordance with Ordinance § 3.15 regarding Outdoor Lighting.

2. Applicants shall secure and submit to the Town of Plymouth Zoning Administrator, 

within thirty days from this approval becoming final, a site plan prepared and stamped 

by a licensed land surveyor or engineer, with the appropriate certificate from her or him, 

conforming to the site plan presented at trial. See Exhibit D.

3. The Planning Commission approval for the construction 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 and receive all necessary municipal and 

state land use permits for development of that second lot. 

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

Done at Berlin, Vermont this 28th day of October, 2013. 

 

 Thomas S. Durkin, Environmental Judge