1 STATE OF VERMONT

ENVIRONMENTAL COURT
} In re: Dunkin Donuts Site Plan Amendment Application } Docket No. 143-7-07 Vtec (Appeal of Cumberland Farms) } }
Decision and Order on Motion for Summary Judgment Appellant Cumberland Farms, Inc., appealed from a d ecision of the Development Review Board (DRB) of the City of Montpelier, grant ing approval of a site plan amendment to Appellee-Applicant Damartin Quadros for a drive- through addition to an existing Dunkin Donuts restaurant and retail store. Appella nt is represented by Jon T. Anderson, Esq., and David W. Rugh, Esq., Appellee-Applicant i s represented by Robert Halpert, Esq. and Stephen Cusick, Esq., and the City of Montpelie r is represented by Amanda S.E. Lafferty, Esq. Appellant has moved for summary judgment. The foll owing facts are undisputed
unless otherwise noted. Appellee-Applicant had first applied for site plan approval in 2001 to remove an existing building and to construct a Dunkin Donuts restaurant and retail store at what was then 47–51 Berlin Street. That application was den ied by the then-Planning Commission for several reasons, including problems with trafficaccess and circulation resulting from a proposed drive-through lane and drive-up window. In 2002, Appellee-Applicant filed a revised application for site plan approval for th e construction of the store, without a drive-through lane or drive-up window; the then-Pla nning Commission approved the revised site plan. Appellant Cumberland Farms, Inc ., adjoining the property to its west, appealed that decision to Environmental Court in Do cket No. 196-9-02 Vtec. That appeal was resolved by the parties’ stipulatio n and the Court’s entry of an1 The DRB required as a condition of approval that Appellee-Applicant:

. . . perform a follow-up traffic study for one cal endar year after the date of completion to assess the traffic safety and to dete rmine whether further modifications are needed to improve traffic safety at Berlin Street and the driveway. A certificate of compliance will not be issued until after review and approval of follow[-]up traffic study by staff. Applicant will address any issues raised by staff review of the traffic study. Appellant also challenges the legality of this cond ition. Due to the resolution of the present motion we do not reach this issue at this time in this appeal.

2 order granting site plan approval for the construct ion of the Dunkin Donuts restaurant and retail store, and imposing the conditions agreed to in the parties’ stipulation. Appeal of
Cumberland Farms , Docket No. 196-9-02 Vtec (Vt. Envtl. Ct., March 1 9, 2003). Condition 2 provided for the project to be constructed in acc ordance with an attached site plan, “providing for eighteen (18) parking spaces.” Cond ition 5 provided that the project “shall not include a drive-up service window or drive-thro ugh service.” In June of 2005, in connection with resolution of s uperior court litigation with another adjoining property owner to the east of the subject property, Appellee-Applicant obtained site plan approval of a reduction of one p arking space, requiring it to maintain 17 spaces on the project property. No party appealed this reduction in parking. In December of 2006, Appellee-Applicant applied for approval of a further amendment to the site plan, to install a drive-up s ervice window and speaker, to remove two parking spaces and the granite curbing in front, and to add drive-through graphics to the sign. In connection with this application, Appe llee-Applicant did not move under V.R.C.P. 60(b) (or otherwise) for relief from the 2 003 judgment in Appeal of Cumberland
Farms , Docket No. 196-9-02 Vtec (Vt. Envtl. Ct., March 19, 2003). The DRB’s grant of approval 1 of the site plan “for the addition of a drive-thro ugh lane” at the existing Dunkin Donuts establishment a t 51 Berlin Street, including changes to the access and circulation of the site, the inst allation of a drive-up window and speaker,3

and the elimination of seven parking spaces, is the subject of the present appeal.

Finality of the Stipulated Court Order in Docket No . 196-9-02 Vtec In general, “[o]nce a stipulation is incorporated in to a final order, concerns regarding finality require that the stipulation be susceptibl e to attack only on grounds sufficient to overturn a judgment.” Pouech v. Pouech, 2006 VT 40, ¶ 20, 180 Vt. 1, 11. That is, once a party agrees to a stipulation, that party is bound by it, and the course of the trial is determined by it. Eurich v. Coffee-Rich, Inc. , 130 Vt. 537, 542 (1972); Cooper v. Savage , 145 Vt. 223, 225 (1984). The parties are similarly bou nd by a final order incorporating 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). Thus, Appellee-Applicant is bound by the 2003 stipu lated court order in Docket No. 196-9-02 Vtec, unless by motion he can show under V .R.C.P. 60(b) the type of mistake, inadvertence, surprise, excusable neglect, newly-disc overed evidence, fraud, or other reason justifying relief from that stipulated courtorder. In general, the Vermont Supreme Court has consisten tly ruled that V.R.C.P. 60(b) “does not operate to protect a party from freely ma de tactical decisions which in retrospect may seem ill advised.” Wild v. Brooks , 2004 VT 74, ¶ 20, 177 Vt. 171, 180; Juster v. Just er , 2007 VT 111, ¶ 4; and see, e.g. , Goshy v. Morey , 149 Vt. 93, 97 (1987). Moreover the granting of partial relief from a stipulation is pa rticularly disfavored because “the granting of partial relief alters the parties’ original agre ement and generally causes one of the parties to bear the burdens of the agreement while foregoin g its benefits.” Hood v. Hood , 146 Vt. 195, 197 (1985). However, Appellee-Applicant has not applied for re lief from judgment in Docket No. 196-9-02 Vtec. Such a Rule 60(b) motion is the refore not before this Court in the present appeal. Unless relief from the judgment inDocket No. 196-9-02 Vtec were to be4

granted, Condition 5 of the stipulated court order in Docket No. 196-9-02 precludes consideration of the present application.

Successive Application The parties may have conflated the issue of reopening the consent judgment with the issue of whether a change in circumstances warr ants the DRB (and hence this Court in
this de novo appeal) to consider a successive application. Sec tion 307 of the Zoning and Subdivision Regulations allows the submittal of sit e plan amendment applications. The applicable state statute allows but does not requir e the DRB to reject such an application
if it considers that the issues “have been decided in an earlier appeal or involve substantially or materially the same facts.” 24 V. S.A. § 4470(a). As this Court recently explained in In re R.L. Vall ee PUD (Spillane’s) , Docket No. 100-5-07 Vtec, slip op. at 4 (Vt. Envtl. Ct., Aug. 1 7, 2007), a successive application may generally be presented: if “there has been a substantial change in the appl ication or the circumstances.” In re Armitage , 2006 VT 113, ¶8 (citing In re Carrier , 155 Vt. 152, 158-59 (1990)); In re: Murphy Conditional Use Application, Town of Bakersfield v. Murphy, Docket Nos. 134-6-06 Vtec and 168-7-06 Vtec, slip op. at 8-9 (Vt. Envtl. Ct., Nov. 16, 2006). A substanti al change in circumstances can occur when there have been changes to the appli cation itself, to address concerns that caused the previous denial, Armitage , 2006 VT 113, ¶9, a change in the physical surroundings of the property , Carrier , 155 Vt. at 158 (citing Rocchi v. Zoning Bd. of Appeals , 248 A.2d 922, 925 (Conn. 1968)), or a change in the governing regulations. In re Mille r Subdivision Final Plan (Appeal of Fothergill) , Docket No. 178-7-06 Vtec, slip op. at 6-7 (Vt. En vtl. Ct., Mar. 21, 2007); see also DuPage Forklift Serv., Inc . v. Material Handling Serv., Inc. , 744 N.E.2d 845, 850 (Ill. 2001) (citing Restateme nt 2d of Judgments §28(2)). In the present appeal, we do not reach the issue of whether any changes in the ordinance, or the configuration of the site circula tion, or traffic on the adjoining streets, or5

any other factors would have warranted a successive application in the absence of the court order in Docket No. 196-9-02 Vtec, or whether § 307allows such an application regardless of the factors discussed above. Rather, reopening the judgment in Docket No. 196-9-02 Vtec and eliminating Condition 5 in that stipulated court order is a necessary precondition to making the application at issue in the present a ppeal.

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that summary judgment is GRANTED in favor of Appellant C umberland Farms, Inc., vacating the decision appealed from and concluding this appe al. Any V.R.C.P. 60(b) motions regarding the stipulation or stipulated court order would necessarily have to be filed as post-judgment motions in Docket No. 196-9-02 Vtec a nd not in the present appeal.

Done at Berlin, Vermont, this 31 stday of October, 2007.

_________________________________________________ Merideth Wright Environmental Judge