STATE OF VERMONT Superior Court - Environmental Division

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In re Martin & Martin Variance Application , Docket No. 215-11-09 Vtec
Project: Request for zoning variance to reconfigure lots and construct new residence
Applicant: Jeffrey Martin and Gregory Martin (Appeal from Dorset Zoning Board o f Adjustment determination)

Title: Motion for Summary Judgment (Filing No. 3)

Filed: September 10, 2010

Filed By: Marilyn F. Hand, Attorney for Appellants/ Applicants Jeffrey Martin and Gregory Martin

Response in Opposition filed on 10/7/10 by Joseph J . O'Dea, Attorney for Appellee Town

of Dorset

___ Granted _X _ Denied ___ Other

This appeal concerns an August 10, 2009 decision of the Town of Dorset (“Town”) Zoning Board of Adjustment (“ZBA”) to deny a varian ce sought by Jeffrey and Gregory Martin (“Applicants”) 1 for the development of a new single-family residen ce, and associated development, on property they own at 397 Red Trail Lane. As part of their application, Applicants propose creating two reconfigured lots f rom their three current lots. The three current lots include a 30-acre undeveloped lot, a 1 0-acre undeveloped lot, and a 10-acre lot with a single-family residence. The reconfigur ed lots are to include a 23-acre lot with the proposed new residence and a 27-acre lot compri sed of the remaining land and containing the existing single-family residence.

Pending before the Court is Applicants’ motion for summary judgment. Applicants argue that they are entitled to judgment in their f avor because the ZBA did not follow proper procedural steps in issuing its decision. S pecifically, Applicants argue that the ZBA did not vote to deny the variance in a open meeting as required by 1 V.S.A. § 312, did not ratify or approve such a vote in an open meeting, a nd did not send a decision denying the variance by certified mail to Applicants as require d by 24 V.S.A. § 4464(b)(3). Applicants

maintain that this resulted in the failure of the Z BA to issue a decision in the 45-day time limit imposed by 24 V.S.A. § 4464(b)(1) and that co nsequently their variance request is entitled to “deemed approval.”

Summary judgment is warranted only if the moving pa rty demonstrates both that there are no material facts in dispute and that it is entitled to judgment as a matter of law. See V.R.C.P. 56(c)(3); Gore v. Green Mountain Lakes , 140 Vt. 262, 264 (1981). Summary judgment is not appropriate when the record contain s evidence of specific facts supporting the existence of disputed material facts. See V.R. C.P. 56(c)(3); Samplid Enters. v. First Vt.

1 We note that the pending application only lists “Jeff Martin” as the applicant, although Applicants’ pleadings represent Jeffrey and Gregory Martin as co-applicant s. Applicants submitted a copy of the application as Exhibit G-2 and a copy of a warrant y deed vesting title in “GREGORY FORBES

MARTIN and JEFFREY BAKER MARTIN” as Exhibit D. We con sider both the Messrs. Martin as applicants, until advised otherwise.In re Martin & Martin Variance Application , No. 215-11-09 Vtec (EO on motion for summary judg ment) 2.

Bank , 165 Vt. 22, 25 (1996); Gore , 140 Vt. at 266. In ruling on a summary judgment motion, the Court is barred from weighing the evide nce submitted in support or opposition of the motion, Environmental Board v. Chickering , 155 Vt. 308, 319 (1990), and must give the non-moving party the benefit of all reasonable doubts and inferences, Samplid Enterprises , 165 Vt. at 25. However, a court is authorized to issue summary judgment against the moving party when there are no disputed material facts and the non-moving party is entitled to judgment as a matter of law. See V.R.C.P. 56(c)(3) (“Summary judgment when appropriate may be rendered against t he moving party”); Alpine Haven Property Owners Assoc. v. Deptula , 2003 VT 51, ¶ 21, 175 Vt. 559 (mem.).

Applicants’ first challenge to the ZBA denial of th eir variance request is premised upon an accusation that the ZBA improperly made its determination while still in executive or deliberative session, after concluding the August 10th public hearing. 2 Applicants argue in their pending motion that as a consequence of this violation of 1 V.S.A. § 312, the ZBA decision should be voided and Applicants’ variance request should be granted pursuant to the doctrine of deemed appro val. 3 The Town counters with representations, included in an affidavit and sworn -to deposition testimony, that the ZBA, in fact, made its decision in an open session of th eir meeting, after completing its deliberative session. A close analysis of Applican ts’ factual representations and arguments does not reveal a contradiction of the Town’s repre sentation. Rather, Applicants challenge the veracity of the Town’s representation by noting that there is no independent documentation to support the Town’s version of thes e procedural facts. 4 We are unaware

2 See Applicants’ Statement of Questions #1, filed Nov. 24, 2009.
We question Applicants’ assertion that municipal panels, such as the Dorset ZBA, are obligated to render their decisions in open session. Open session determinati ons may be the better practice, as that provides notice on the record of a determination. Ho wever advantageous such a practice may be, zoning boards are not required to employ it exclusi vely. Our Supreme Court has determined that when a zoning board rules on a variance requ est, it is performing a quasi-judicial function and is therefore going through the exercise of appl ying the law to the facts. Chioffi v. Winooski Zoning Bd. , 151 Vt. 9, 11–13 (1989). Additionally, when review ing variance applications, zoning boards are required to comply with a specific set of h earing and notice requirements, including holding “warned public hearing[s]” and making their decisions part of the “public records of the municipality.” 24 V.S.A. § 4464(a)(1), (b)(3). In light of the Supreme Court’s conclusion in

Chioffi and the requirements of 24 V.S.A. § 4464, we conclude that z oning boards are exempted from the requirement in the Vermont open meeting law to onl y take formal actions during open meetings. See 1 V.S.A. § 312(f) (“A written decision issued b y a public body in connection with a quasi-judicial proceeding need not be adopted at an open meetin g if the decision will be a public record.”); see also 1 V.S.A. § 310(5)(b).

3 See 24 V.S.A. § 4464(b)(1) (“failure of the panel to issu e a decision within [45 days] shall be deemed approval”); see also In re Fish , 150 Vt. 462, 464 (1988) (interpreting the statutory r emedy of deemed approval as a “remedy [for] indecision and protracted d eliberations on the part of zoning boards and to eliminate deliberate or negligent inaction b y public officials”) (citation omitted).

4 While the August 10, 2009 ZBA meeting minutes are not a model of clarity, we cannot interpret the minutes themselves to support Applicants’ assertion that th e ZBA took its action in deliberative session. The minutes do not memorialize any comments or activities conducted in deliberative session, and the Court understands this absence to be customary fo r municipal meeting minutes. The minutes appear to memorialize only the comments and a ctions taken in open session, including the ZBA decision to deny Applicants’ variance request. It is tru e that if these minutes specifically noted when the ZBA completed its deliberative session and that the ZBA advised Applicants and others in attendance that it would be rending a decision in an open meeting after completing its deliberations, the events of the meeting would be more transparen t. But, the absence of these references in the minutes does not prove they did not occur, a s Applicants suggest.In re Martin & Martin Variance Application , No. 215-11-09 Vtec (EO on motion for summary judg ment) 3.

of a legal doctrine that a factual representation i n this context must be independently supported by documentation.

When viewing the material facts in a light most fav orable to the Town (as the nonmoving party), we conclude that Applicants’ request for summary judgment must be

DENIED . In fact, since Applicants offer no contradiction to the Town’s representation that the ZBA vote was taken in open session, conducted a fter the conclusion of the ZBA deliberative session, we must conclude that the Tow n’s representation is undisputed. For the reasons more fully discussed below, we further conclude that Applicants’ request that the doctrine of deemed approval be applied to its p ending variance application must also
be DENIED as a matter of law.

Applicants also question whether the ZBA’s actions complied with 24 V.S.A. § 4464(b) and constitute the “issuing” of a decisio n within the 45-day time limit necessary to prevent “deemed approval.” The parties disagree as to whether the decision was mailed to Applicants. There is adequate support in the re cord for the Town’s allegation that it completed and mailed a decision to Applicants. How ever, the Town does admit that the mailing was not sent certified, as required by 24 V .S.A. § 4464(b)(3). (See Mem. In Resp. to Appellants’ Resp. to the Town’s Reply to Their Moti on for Summ. J. 1, filed Nov. 10, 2010).

Importantly, the question of whether a variance dec ision is “issued” within 45 days (a requirement under § 4464(b)(1)) does not turn on whether it is mailed within that period (a requirement under § 4464(b)(3)) “so long as the failure to send a copy is inadvertent and not the result of a policy or purpose to withhold n otice of the decision.” Leo’s Motors v.

Town of Manchester , 158 Vt. 561, 565 (1992) (interpreting a previous version of 24 V.S. A. § 4464(b), formerly codified as 24 V.S.A. § 4470(a) ); In re Appeal Griffin , 2006 VT 75, ¶ 15, 180 Vt. 589 (upholding Leo’s Motors and applying it to a conditional use decision). T he

Leo’s Motors court established that an applicant bears a high b urden of proof on the facts sufficient to warrant the application of the blunt remedy of deemed approval. 158 Vt. at

565.

Our Supreme Court has directed that reviewing court s apply deemed approval sparingly, since its application “can result in [th e] granting of permits that are wholly inconsistent with the zoning regulations of a munic ipality[,] to the detriment of surrounding landowners.” In re Fish , 150 Vt. 462, 464 (1988). Deemed approval is reserved for situations when it is clearly consiste nt with the statutory intent of “remedy[ing] indecision and protracted deliberation s on the part of zoning boards and . . . eliminat[ing] deliberate or negligent inaction by p ublic officials.” See, e.g., In re Appeal of McEwing Services , 2004 VT 53, ¶ 21, 177 Vt. 38 (citation omitted). The Fish Court cautions against application of the doctrine where no such protracted delay has occurred, even where technical defects in notice or procedure have occurred. 150 Vt. at 465.

Here, the Town represents that a copy of the ZBA de cision was mailed to Applicants at the address that appeared on their application, albeit by regular mail, and that the mailing was not returned to the Town as undeliverab le. Applicants do not directly contest this point, but rather provide some evidence of how Applicants may have relocated to several New York City addresses in 2008. 5 Further, Applicants do not provide allegations and supportive facts on the question of whether the Town acted purposefully to withhold notice. Ultimately, Applicants received notice of the ZBA decision and were able to file a timely appeal with this Court.

5 See Applicants’ Exhibit 3, filed Nov. 4, 2010.In re Martin & Martin Variance Application , No. 215-11-09 Vtec (EO on motion for summary judg ment) 4.

When viewing the material facts in a light most fav orable to the Town there is a clear absence of facts in the record to support the application of deemed approval. Therefore, Applicant’s motion must be DENIED

. The Court requests that the parties confirm that di scovery has been completed and that the remaining legal issues posed in Applicants ’ Statement of Questions stand ready for trial. The Environmental Case Manager will con duct a pre-trial telephone conference to discuss trial preparation. A notice of hearing forthat purpose is attached.

___________________________________________ ___December 3, 2010

___ Thomas S. Durkin, Judge Date



### =================================================== ===================== Date copies sent to: ____________ Clerk's Initials _______

Copies sent to:
Marilyn F. Hand, Attorney for Appellants Jeffrey B. Martin and Gregory F. Martin

Interested Person Dorset Hollow Corporation

Interested Person Kathleen Wallace
Joseph J. O'Dea, Attorney for the Town of Dorset