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STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 13-1-14 Vtec

St. Johnsbury Academy Act 250 

 Permit Amendment Application Appeal 

 (Act 250 Application # 7C0355-10-1) 

DECISION ON MOTION 

Decision on Motion for Summary Judgment

The matter presently before Court relates to an Act 250 Permit Amendment issued to 

St. Johnsbury Academy (“the Academy”) by the District 7 Environmental Commission 

(“Commission”). The Academy seeks to renovate and expand an existing dormitory building 

known as the Cramton House (“the Project”). The Cramton House is listed on the National 

Register of Historic Places as a contributing resource in the St. Johnsbury Main Street Historic 

District and is therefore undisputedly a historic building. 

The Commission held a hearing on the Project application on July 1, 2013, in which the 

Vermont Division for Historic Preservation (“DHP”) participated. The Academy made numerous 

changes to the Project design based on DHP’s input. The Commission issued the Academy an 

Act 250 Permit for the Project on July 17, 2013. This permit was not appealed and is therefore 

final and binding on all parties. On October 25, 2013 the Academy filed a permit amendment 

application seeking to revise the Project design in a number of ways, which the Commission 

granted on December 30, 2013 and DHP timely appealed to this Court. DHP is concerned that 

the changes to the Project design allowed by the permit amendment will have an adverse effect 

on the historic Cramton House. 

Both DHP and the Vermont Natural Resources Board (“NRB”) filed motions for summary 

judgment asking the Court to deny the amendment application as a matter of law because the 

Academy is not entitled to seek an Amendment under Act 250 Rule 34(E). 

DHP is represented in this appeal by attorney Dale E. Azaria, the NRB is represented by 

attorney Melanie Kehne, and the Academy is represented by attorney Matthew T. Daly. 
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Factual Background 

For the sole purpose of putting the pending motions into context the Court recites the 

following facts which it understands to be undisputed: 

1. St. Johnsbury Academy is a private secondary school that also serves public school 

students in the City of St. Johnsbury (“City”) and the surrounding towns. 

2. The Academy owns the historic Cramton House, located on Park Street in the City, which 

it currently uses as a dormitory. 

3. The Cramton House is listed on the National Register of Historic Places as a contributing 

resource in the St. Johnsbury Main Street Historic District. It is described in the National 

Register as “a 2 1⁄2 story, clapboard Queen Anne house of irregular plan. It is distinctive 

for the ornamental spool and shingle work of its porches and window bays.” 

4. The Academy sought an Act 250 Permit for an approximately 1,200 square foot addition 

to the Cramton House to increase the number of bedrooms from four to six and the 

number of faculty apartments from one to two, thereby expanding the Cramton House’s 

capacity from eight students and one family to twelve students and two families. 

5. The Commission held a properly noticed hearing on this application on July 1, 2013 in 

which the Vermont Division for Historic Preservation participated. 

6. The Commission recessed this hearing in order to provide the Academy and DHP an 

opportunity to file a joint agreement resolving DHP’s aesthetic and historic preservation 

issues with the project design and alleged adverse impacts on the historic Cramton 

House. 

7. By letter from DHP to the Commission dated July 10, 2013, DHP asked the Commission 

to impose 11 conditions on the project design to mitigate what it thought were undue 

adverse impacts on the historic Cramton House. The Academy agreed to all but one of 

these conditions. This letter and the agreement between DHP and the Academy 

indicate one of DHP’s primary concerns to be maintenance of a distinction between the 

new addition and the historic portion of Cramton House. 
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8. The Commission approved the addition to the Cramton House and issued the Act 250 

Permit1

 (“the Underlying Permit”) on July 17, 2013. The Underlying Permit decision 

recognizes the agreement between the Academy and DHP in its Findings of Fact. 

9. The Academy, on October 25, 2013, filed Application # 7C0355-10-1 (“the Amendment 

Application”), seeking to alter the final design approved by the Underlying Permit in the 

following ways: 

a. Instead of the 6/1 Colonial Revival-style muntin pattern2 windows planned for 

the addition on the west side of the building, windows that match the Queen 

Anne-style replacement windows of the existing historic site; 

b. Changing the appearance of the secondary entrance on the southerly streetfacing “primary” façade from a modern-looking connecter between the existing 

historic house and the new addition to a more traditional front entry door with 

sidelights; 

c. Changing the details of the south facing gable of the new addition (on the west 

side of the building) from a plain clapboarded gable with a single 4-light fixed 

sash to a gable with decorative shingle detail above a horizontally oriented, 5-

light fixed sash. Decorative shingle panels are also proposed for the west- and 

north-facing gables in the addition; 

d. Reducing the number of windows on the second story of the addition where it 

connects to the existing historic house from two to one; 

e. Adding a roof over the newly created ground-level entrance for protection. 

10. DHP opposes these changes and asserts that they will blur the distinction between the 

old, historic portion of the Cramton House and the new addition and, therefore will 

have an undue adverse effect on the historic building. 

11. The Academy characterizes these changes as practical alterations that improve 

efficiency and “make the building better.” 

 

 

1

 This underlying permit was characterized as a permit amendment as the entire St. Johnsbury Academy facility is 

subject to an earlier Act 250 Permit. This underlying Permit is identified as No. 7C0355-10. 

2

 A “muntin” is the strip of wood or metal separating and holding individual panes of glass in a window. 
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Motions for Summary Judgment 

The court will grant summary judgment if a moving party demonstrates that “there is no 

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). When considering a motion for summary judgment, the 

Court will accept as true all factual allegations made in opposition to the motion and give the 

non-moving party the benefit of all reasonable doubts and inferences. Robertson v. Mylan 

Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (internal citations omitted). In order to establish that 

a material fact is either disputed or undisputed a party must support their assertions with 

citations to materials in the record. V.R.C.P. 56(c). 

I. Act 250 Rule 34(E), the Stowe Club Highlands Analysis. 

Because the parties seem to be in agreement that the question of whether the project, 

as amended, complies with all relevant Act 250 Criteria would require further factual 

development, the sole question raised in the DHP and NRB’s motions for summary judgment is 

whether the Academy is entitled to seek an amendment to its Permit. Where a final and 

binding Act 250 permit has been issued, it is only under certain circumstances that an applicant 

can seek to amend a permit condition. 

Determining whether an applicant is entitled to seek an amendment requires a threestep analysis, originally discussed by our Supreme Court in In re Stowe Club Highlands and later 

codified as Rule 34(E) of the Natural Resources Board Act 250 Rules. Code of Vt. Rules 12 004 

060, available at http://www.lexisnexis.com/hottopics/codeofvtrules. First, the district 

commission, or this Court on appeal, must determine “whether the applicant proposes to 

amend a permit condition that was included to resolve an issue critical to the issuance of the 

permit. This determination shall be made on a case-by-case basis.” Id. If the condition was not 

included to resolve a critical issue, then the applicant is entitled to seek an amendment. If, 

however, the condition was critical to the issuance of the permit, we must “consider whether 

the permittee is merely seeking to relitigate the permit condition or to undermine its purpose 

and intent.” Id. If the applicant is only seeking to relitigate or undermine the condition, the 

analysis ends and the applicant is not entitled to seek an amendment. If, in the alternative, the 
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applicant is not merely seeking to relitigate or undermine the condition, we must weigh the 

competing goals of finality and flexibility based on an enumerated list of factors. 

In the present motions for summary judgment, the NRB and DHP seek judgment in their 

favor and ask the Court to find that the relevant condition was critical and that furthermore, 

even if the Academy is not seeking to relitigate the Underlying Permit, finality outweighs 

flexibility as a matter of law. 

II. The Academy’s Permit Amendment Application 

DHP’s appeal of the Permit Amendment Application raises two legal issues: the question 

at issue in these motions for summary judgment—whether the Academy is entitled to seek a 

permit amendment—and if they are, the merits of the appeal and whether the proposed 

amendment complies with the relevant Act 250 Criteria. Here, the only Act 250 Criterion at 

issue is Criterion 8 as it relates to the proposed project amendments’ alleged undue adverse 

impacts upon the historic Cramton House and the St. Johnsbury Main Street Historic District in 

which the Cramton House is located. 

As noted above, the Academy seeks to modify the style of windows used on the new 

addition, certain details regarding the shingles and lights over one entry, and the addition of a 

roof over the entry. There are no permit conditions that specifically address these elements. 

Rather, the condition cited by DHP and the NRB, Condition 2, states simply: “The project shall 

be completed, operated and maintained in accordance with the Findings of Fact and 

Conclusions of Law and Order #7C0355-10, the plans and exhibits on file with the District 

Commission, and the conditions of this permit.” (State of Vermont Land Use Permit #7C0355-

10 at 1, filed May 19, 2014). 

The Findings of Fact in the decision approving the Underlying Permit references 11 

proposed conditions that DHP sought in order to mitigate any impacts on the historic building. 

The Academy, and ultimately the Commission, agreed with all but one, condition four, as set 

out in the Commission’s Findings of Fact, Conclusions of Law, and Order. While these proposed 

conditions relate generally to DHP’s goal of maintaining a distinction between the historic and 

new portions of the Cramton house, none specifically address the elements the Academy now 

seeks to change in the Permit Amendment. 
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Given the broad nature of the condition relied upon by DHP in its motion, the Court 

cannot say that the Amendment Application seeks to amend a condition that was critical to the 

issuance of the permit without further factual development. Rule 34(E) itself states that the 

determination of whether a condition was critical to the issuance of the permit “shall be made 

on a case-by-case basis.” Code of Vt. Rules 12 004 060, available at http://www. 

lexisnexis.com/hottopics/codeofvtrules. Where, as here, the permit condition invoked requires 

that a development be constructed in accordance with the decision, plans, and exhibits 

presented to the Commission, a question of fact arises as to whether an element of those plans 

was critical to the issuance of the permit or not. Certainly, some details on a given plan will be 

critical to the issuance of the permit and others will not. For example, in an application for a 

commercial development where traffic and pedestrian safety is a central issue, the depiction of 

walkways, driveways, and site access points on a site plan would likely be critical to the 

issuance of the permit, but the depicted color of the building or style of window muntins would 

likely not. Here, the sole issue is whether the amendments amount to an adverse impact on 

the historic Cramton House and the aesthetic features of the design. Although the Amendment 

Application certainly amends the project in ways that DHP finds significant, we cannot say 

without further factual development whether or not the Amendment Application seeks to 

amend a critical condition. 

The determination of whether or not finality outweighs flexibility is also undertaken on 

a case-by-case basis and dependent on the specific facts of a given case. In re Ashford Lane 

HOA Act 250 Application, No. 69-5-13 Vtec, slip op. at 4–5 (Vt. Super. Ct. Envtl. Div. Dec. 6, 

2013) (Walsh, J.). We also note, in the words of the former Environmental Board, that “Act 250 

permits are written on paper, not carved in stone, and the relitigation concepts embodied in 

[Act 250 Rule 34(E)] cannot be considered to be unconditionally ironclad, as, in some sense, 

every permit amendment application is a relitigation of an initial permit condition.” Re: Dr. 

Anthony Lapinsky and Dr. Colleen Smith, Nos. 5L1018-4 and 5L0426-9-EB, Findings of Fact, 

Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd. Oct. 3, 2003). 

The facts regarding what conditions the Amendment Application actually seeks to 

change, whether those conditions were critical to the issuance of the permit, and whether 
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finality outweighs flexibility in considering changes to those conditions are either lacking or 

disputed. The facts relevant to making these determinations will also be relevant to the 

ultimate question, should we reach it, of whether or not the design changes proposed in the 

Application Amendment will have an undue adverse effect on the historic Cramton House. It is 

important to note that under this Criterion it is DHP, the project opponent, who bears the 

burden of proof to show that the project will have an undue adverse effect. 10 V.S.A. § 6088. 

Conclusion 

Given this burden and the relevant legal standards, neither DHP nor the NRB has shown 

the absence of a genuine dispute of material fact or that they are entitled to judgment as a 

matter of law that the Academy’s Amendment Application must be denied. Therefore, the DHP 

and NRB Motions for Summary Judgment are DENIED. 

Electronically signed on February 6, 2015 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Judge 

Environmental Division