Environmental Court of Vermont 

State of Vermont 

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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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Carson A250 JO #3-118 Docket No. 13-1-08 Vtec 

Project: Carson LUP #3R0133-4 

Applicants: Kenneth & Sally Ann Carson 

Appellant : Beverly Grimes 

 (Appeal from District 3 Environmental Commission Decision) 

Title: Motion for Summary Judgment, No. 3 

Filed: August 13, 2008 

Filed By: C. Daniel Hershenson, Attorney for Appellant Beverly Grimes 

Response filed on 08/29/08 by Appellees Kenneth & Sally Ann Carson 

___ Granted _X_ Denied ___ Other 

___ Scheduled for hearing on: _________ at ________; Time Allotted ________ 

Summary judgment is only appropriate when there are no genuine 

issues of material fact in dispute. V.R.C.P. 56(c)(3). Here, each party 

has presented material facts, many disputed by the other party, upon which 

they conclude that this Court should rule as a matter of law on whether 

the Carsons’ shed requires an amendment to their Act 250 Permit. This 

type of ruling requires us to consider whether the shed constitutes a 

“change” that is “material” to a pre-existing, permitted development under 

Vermont Natural Resources Board Act 250 Rule 34(A).

Act 250 Rule 2(C)(6) defines a “material change” as “any change . . 

. which has a significant impact on any finding, conclusion, term or 

condition of the project's permit and which may result in an impact with 

respect to any of the criteria specified in 10 V.S.A. Section 6086(a)(1) 

through (a)(10).” (Emphasis added.) 

Material facts are currently in dispute as to whether the Carsons’ 

shed has the type of significant impact described in Act 250 Rule 2(C)(6). 

In particular, the parties dispute whether the complained-of shed is the 

type of structure that is restricted to the “proposed house site” area 

identified in the Carsons’ pre-existing Act 250 permit and whether the 

elevated location of the shed, in and of itself, is of such significance 

as to cause a material impact, as defined under Act 250 Rule 2(C)(6). 

Such analysis requires us to make factual determinations concerning the 

complained-of shed and to thereafter make a legal determination of whether 

the shed “has a significant impact on any finding, conclusion, term or 

condition of the project’s permit and which may result in an impact with 

respect to any of the [Act 250] criteria.” Id. 
In re Carson Act 250 JO Appel, Docket No. 13-1-08 Vtec (Entry Order on s/j motion)(10-06-08) Page 2 of 2. 

Material facts are in dispute as to all these factual issues; 

summary judgment is therefore inappropriate. V.R.C.P. 56(c)(3). For all 

of these reasons, both requests for summary judgment are DENIED.

* 

___________________________________________ ___October 6, 2008______ 

 Thomas S. Durkin, Judge Date 

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Date copies sent to: ____________ Clerk's Initials _______ 

Copies sent to: 

 C. Daniel Hershenson, attorney for Appellant Beverly Grimes 

 David Grayck, attorney for Appellees Kenneth & Sally Ann Carson 

 Co-Counsel for Appellees, Zachary K. Griefen 

 For Informational Purposes Only, Natural Resources Board/LU Panel 

 (c/o Melanie Kehne, Esq.) 

 

*

 Appellee Carsons’ memorandum in opposition to Appellant’s summary judgment motion contains a 

request that the Court enter summary judgment in Appellees’ favor on the legal issues of whether the 

complained-of shed is a change that is material to or regulated by the previously-issued permit. Because 

material facts are in dispute, and for the reasons noted above, we conclude it inappropriate at this time to 

enter the requested summary rulings.