STATE OF VERMONT 

Superior Court - Environmental Division 

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E N T R Y R E G A R D I N G M O T I O N 

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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 of 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 variance sought by Jeffrey and Gregory 

Martin (“Applicants”)1 for the development of a new single-family residence, and associated 

development, on property they own at 397 Red Trail Lane. As part of their application, 

Applicants propose creating two reconfigured lots from their three current lots. The three 

current lots include a 30-acre undeveloped lot, a 10-acre undeveloped lot, and a 10-acre 

lot with a single-family residence. The reconfigured lots are to include a 23-acre lot with 

the proposed new residence and a 27-acre lot comprised 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 favor because the ZBA did not follow 

proper procedural steps in issuing its decision. Specifically, 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, and did not send a decision denying the 

variance by certified mail to Applicants as required by 24 V.S.A. § 4464(b)(3). Applicants 

maintain that this resulted in the failure of the ZBA to issue a decision in the 45-day time 

limit imposed by 24 V.S.A. § 4464(b)(1) and that consequently their variance request is 

entitled to “deemed approval.” 

Summary judgment is warranted only if the moving party 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 contains 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-applicants. Applicants submitted a copy of 

the application as Exhibit G-2 and a copy of a warranty deed vesting title in “GREGORY FORBES 

MARTIN and JEFFREY BAKER MARTIN” as Exhibit D. We consider 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 judgment) 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 evidence 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 the 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 their 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 approval.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 their meeting, after completing its 

deliberative session. A close analysis of Applicants’ factual representations and arguments 

does not reveal a contradiction of the Town’s representation. 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 these 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 determinations may be the better practice, 

as that provides notice on the record of a determination. However advantageous such a practice 

may be, zoning boards are not required to employ it exclusively. Our Supreme Court has 

determined that when a zoning board rules on a variance request, it is performing a quasi-judicial 

function and is therefore going through the exercise of applying the law to the facts. Chioffi v. 

Winooski Zoning Bd., 151 Vt. 9, 11–13 (1989). Additionally, when reviewing variance applications, 

zoning boards are required to comply with a specific set of hearing 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 zoning boards are exempted 

from the requirement in the Vermont open meeting law to only take formal actions during open 

meetings. See 1 V.S.A. § 312(f) (“A written decision issued by a public body in connection with a 

quasi-judicial proceeding need not be adopted at an open meeting 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 issue a decision within [45 days] shall be 

deemed approval”); see also In re Fish, 150 Vt. 462, 464 (1988) (interpreting the statutory remedy of 

deemed approval as a “remedy [for] indecision and protracted deliberations on the part of zoning 

boards and to eliminate deliberate or negligent inaction by 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 the 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 for municipal meeting minutes. 

The minutes appear to memorialize only the comments and actions taken in open session, including 

the ZBA decision to deny Applicants’ variance request. It is true 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 transparent. But, the absence of these 

references in the minutes does not prove they did not occur, as Applicants suggest. 
In re Martin & Martin Variance Application, No. 215-11-09 Vtec (EO on motion for summary judgment) 3. 

of a legal doctrine that a factual representation in this context must be independently 

supported by documentation. 

When viewing the material facts in a light most favorable 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 after the conclusion of the ZBA 

deliberative session, we must conclude that the Town’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 pending 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 decision 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 record for the Town’s allegation that it 

completed and mailed a decision to Applicants. However, 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 Motion for Summ. J. 1, filed Nov. 10, 2010). 

Importantly, the question of whether a variance decision 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 notice 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). The 

Leo’s Motors court established that an applicant bears a high burden 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 courts apply deemed approval 

sparingly, since its application “can result in [the] granting of permits that are wholly 

inconsistent with the zoning regulations of a municipality[,] to the detriment of 

surrounding landowners.” In re Fish, 150 Vt. 462, 464 (1988). Deemed approval is 

reserved for situations when it is clearly consistent with the statutory intent of 

“remedy[ing] indecision and protracted deliberations on the part of zoning boards and . . . 

eliminat[ing] deliberate or negligent inaction by public 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 decision 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 undeliverable. 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 judgment) 4. 

When viewing the material facts in a light most favorable 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 discovery has been completed and 

that the remaining legal issues posed in Applicants’ Statement of Questions stand ready 

for trial. The Environmental Case Manager will conduct a pre-trial telephone conference to 

discuss trial preparation. A notice of hearing for that purpose is attached. 

___________________________________________ ___December 3, 2010___ 

 Thomas S. Durkin, Judge Date 

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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