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STATE OF VERMONT 

ENVIRONMENTAL COURT 

} 

In re: Clyde’s Place, LLC, Application } Docket No. 9-1-08 Vtec 

(Appeal of Clyde’s Place, LLC) } 

 } 

Decision and Order on Appellant’s Motion for Partial Summary Judgment

In Docket No. 9-1-08 Vtec, Appellant Clyde’s Place, LLC, appealed from a 

decision of the Development Review Board (DRB) of the Town of Orwell, denying 

Appellant’s alternative requests for approval of the proposed guest house as an existing 

nonconforming structure under Article VII of the 1995 Zoning Bylaws or § 4.12 of the 

2007 Land Use Regulations, or as qualifying for a variance under § 3.7 of the 2007 Land 

Use Regulations. Two other related cases have been filed with the Court but are not 

involved in the present motions: Docket No. 142-7-07 Vtec, which is an appeal of a 

Notice of Violation, and Docket No. 17-1-08 Vtec, which is an enforcement action filed 

by the Town. Appellant is represented by Karl W. Neuse, Esq., and Benjamin W. 

Putnam, Esq.; and the Town is represented by Mark F. Werle, Esq., and Gregory J. 

Boulbol, Esq. 

Appellant moved for summary judgment on Questions 1, 2, and 3 of the 

Statement of Questions, relating to whether the decision on appeal is void because 

members participated in the decision without having attended a November 20, 2007 

hearing, whether the decision is void because three Board members changed their initial 

votes, and, if the decision is void, whether Appellant is entitled to deemed approval of 

its application. In connection with the issues in the present motions, the parties 

provided audio tapes of the DRB meetings held on November 20, 2007 and December 

19, 2007, as they relate to this application. The following facts are undisputed unless 

otherwise noted. 
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Appellant Clyde’s Place, LLC, owns a half-acre parcel of land at 4201 Mount 

Independence Road on the shore of Lake Champlain. Under the former 1995 zoning 

ordinance, it was located in the Rural Residential zoning district. Under the current 

2007 zoning ordinance (2007 Land Use Regulations), it is located in the Rural zoning 

district, and also in the Shoreland overlay zoning district and the Flood Hazard overlay 

zoning district. Patrick Barry is a representative or member of Appellant who has been 

acting for Appellant in the proceedings that are the subject of this appeal. 

 The property contains a main house not at issue in the present case, and 

contained a second existing residential building with a 21’ x 21’ foundation. Issues as to 

the size of the then-existing building and its relation to the slope of the land, including 

whether it had a walk-out basement, whether the entrance to the next story above the 

basement was at ground level from the side of the house facing away from the lake, and 

the volume of the house above the foundation, may be at issue with regard to the merits 

of this matter, but are not at issue in the present motions. 

On June 5, 2006, Rae Anne Barry and Patrick Barry applied for and received a 

zoning permit, issued by the Zoning Administrator, for new residential construction 

“over existing footprint.” The application described the present use of the property as 

“unused dwelling on Barry property” and described the proposed use as “guest hous[e] 

on Barry property.” 

The rough sketch plan attached to the 2006 application for the zoning permit 

showed the location of the proposed construction in relation to the main house on the 

property, close to a private lane, and showed the locations of several neighboring 

houses and Mount Independence Road. The sketch plan showed the proposed guest 

house location indicated with an arrow and labeled as: “21 x 21 footprint to be used – 

dug foundation [–] 2 stories – existing plumbing and sewage.” The sketch plan did not 

 

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 Referred to incorrectly in some of the exhibits and memoranda as 422 Mount 

Independence Road. 
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depict the property boundaries or the “location in feet for frontage, depth of lot, setback 

from a public road, and side and rear setbacks from property lines” required by the 

application form to be provided on the sketch plan. The sketch plan also did not show 

the lake shore, although the scaled site plan provided by Appellant in connection with 

the present motions shows the porch or deck of the former building as having been 

located only twelve feet from the lake shore. Issues as to conversations between 

Appellant’s representatives and former Zoning Administrators may be at issue with 

regard to the merits of the enforcement cases, or any estoppel arguments, but are not at 

issue in the present motions. 

Section 406 of the 1995 Zoning Bylaws prohibited more than one residential 

building per lot. Section 5.1 of the 2007 Land Use Regulations2

 allows an accessory 

residential building, although it is required to meet all dimensional standards. 

As actually constructed, the new guest house consists of the walk-out basement 

level, and two-and-a-half stories over that level. The walk-out basement level occupies 

the 21’ x 21’ area of the former foundation. Based on the elevations and plans provided 

in connection with the present motion, both the ground floor level and the new upper 

floor level of the house appear to extend beyond that foundation by three additional 

feet on the side of the house away from the lake, and by seven additional feet on each 

side of the house, so that the footprint of both stories of the house (above the basement) 

is 24’ x 35’. The lakeshore wall of both the old and the new structure is in the same 

location, twenty feet from the lake shore. The new deck extends farther laterally on 

both sides than did the previous deck, but is one foot narrower, so that it is located 

thirteen feet from the lakeshore. Issues regarding whether the new structure constitutes 

 

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 The parties have not provided the date on which the public notice was issued for the 

first public hearing on the 2007 Land Use Regulations, necessary to determine whether 

the proposed 2007 Land Use Regulations were applicable to the 2006 permit 

application. 24 V.S.A. § 4449(d). 
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an expansion, and how it is regulated under the zoning ordinance, may be at issue with 

regard to the merits of this matter, but are not at issue in the present motions. 

Although Appellant appealed the issuance of an April 23, 2007 Notice of 

Violation (in Docket No. 142-7-07 Vtec), Appellant also submitted a new permit 

application for the as-built structure, characterizing it as the “[r]eplacement of existing 

nonconforming structure.” Appellant listed the setbacks as follows: front setback (from 

the lake) as 12 feet, back (apparently from the private road) setback as 36 feet, and side 

setbacks as 52 and 150 feet. The application stated the building’s dimensions as “21 x 

21; 24 x 35,” and stated the building’s maximum height as “28 feet,” and the number of 

stories as “2.” Appellant also included a scaled site plan and elevations of the building. 

Issues as to the size of the as-built building and its relation to the slope of the land, 

walk-out basement, location of the entrance, size of the deck facing the lake, and the 

size and volume of the house above the foundation, whether or how the building is 

cantilevered, and what was told to Appellant’s representatives by prior representatives 

of the Town, may be relevant to the merits of this matter, and to the other two matters 

before the Court, but are not at issue in the present motions. 

Appellant requested consideration of the proposal as an existing nonconforming 

structure under Article VII of the 1995 Zoning Bylaws or § 4.12 of the 2007 Land Use 

Regulations, or as qualifying for a variance under § 3.7 of the 2007 Land Use 

Regulations.3

 It is this 2007 application that is the subject of the present appeal. 

The DRB held a hearing on the application on November 20, 2007. DRB 

members Thomas Purdy, Sr., David King, Clyde Park, Donald Tupper, and Andrea 

Ochs were present at the hearing; DRB members Miles Tudhope and Ed Taube were 

 

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 In addition, the 2007 Land Use Regulations now provide in § 3.6 for waivers, with 

different criteria than the statutory requirements for a variance, but only “where 

specifically authorized in these regulations.” § 3.6(A). No party claims that any waiver 

provision in the 2007 Land Use Regulations is applicable to this application. 
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absent. At the hearing, Patrick Barry and his sister Margaret Barry Toth provided 

testimony and other evidence regarding the history of the property and the former 

structure, their interactions with representatives of the Town with respect to the 

property, and the characteristics of the proposed structure. 

After the evidentiary and discussion portion of the hearing, the five members of 

the DRB who were present that evening voted on a motion to approve a variance for the 

lake side setback. Three members of the DRB voted in favor of the motion (Park, 

Tupper and Ochs), and two members of the DRB abstained from voting (Purdy and 

King). Ms. Ochs announced that the variance had been granted; however, the issue was 

immediately raised that the vote had not resulted in a valid approval of the variance 

request because a majority of the entire seven-member board had not voted in favor of 

the motion. 24 V.S.A. § 4461(a)(final sentence); 1 V.S.A. § 172. The five members 

present then voted on a motion to approve the variance with specific reference to § 3.7 

of the 2007 Land Use Regulations, which also did not result in a vote by a majority of 

the full board. Two members of the DRB voted in favor of the motion (Tupper and 

Ochs) and three members of the DRB voted against it (Park, Purdy and King). 

The DRB then voted to continue the consideration of the variance application to 

the next DRB meeting. The DRB warning of the December 19, 2007 hearing referred to 

this agenda item as: “[c]ontinuation of a variance application from Patrick E. Barry.” 

On December 5, 2007, Appellant’s attorney sent a letter to the Town’s attorney 

explaining that his client’s representatives had “left the November 20 DRB hearing with 

the understanding that the hearing had been completed” because “the [DRB] took all of 

the evidence that was presented, declined to request submission of any additional 

evidence, and completed a vote on the variance question;” and that he had not advised 

his client’s representatives to attend the December 19, 2007 hearing. 

At the December 19, 2007 hearing, all seven DRB members were present, as was 

Appellant’s attorney. The two DRB members (Miles Tudhope and Ed Taube) who had 
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not been present at the November hearing stated that they had viewed the evidence 

presented at the November hearing and had also listened to the tape of that hearing. 

The DRB asked whether anyone wished to submit any new evidence or comments. 

Attorney Neuse stated Appellant’s understanding from the November hearing that the 

hearing had been closed when the votes were taken in November, and that the deemed 

approval time was running from the November 20, 2007 hearing. He also stated 

Appellant’s argument that the two members who had been absent for the November 

hearing had not observed the demeanor of the witnesses and should not be allowed to 

vote on the decision. No new evidence was presented at the December 19, 2007 

hearing. 

The DRB then entered into a deliberative session, after which all seven members 

voted unanimously to deny the variance. On December 28, 2007, the DRB issued its 

written Findings of Fact and Decision, signed by all seven members of the DRB, 

concluding that Appellant was “not entitled to a variance” and that “a zoning permit 

should not issue.” 

Question 2 – Reconsideration of Vote

As explained at length in In re Appeal of Dunn, No. 2-1-98 Vtec (Vt. Envtl. Ct. 

Mar. 8, 1999), and cited in, e.g., In re Appeal of Comi, No. 95-6-04 Vtec, slip op. at 4–6 

(Vt. Envtl. Ct. Mar. 14, 2005) (Wright, J.), a DRB may vote to reconsider its decision as 

long as the time has not expired for an appeal to be taken from the decision, that is, if 

there has not been reliance on the previous decision. A DRB may warn a hearing to 

take additional evidence and an additional vote, by following the procedures for 

reconsideration outlined in Appeal of Dunn. 

In the present case, immediately following the announcement of the vote of three 

in favor and two abstentions at the November 20, 2007 hearing, Appellant’s 

representatives and the DRB members became aware that the vote had actually been 
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insufficient to constitute ‘action’ by the DRB, because it had not been taken by a 

“concurrence of a majority” of the full seven-member DRB. 24 V.S.A. § 4461(a) (final 

sentence); 1 V.S.A. § 172; In re Lionni, 160 Vt. 625 (1993) (mem.). Unlike under the 

common law rule, in Vermont abstentions are not counted with the majority to 

determine whether a vote has been taken by the concurrence of a majority. In re 

Reynolds, 170 Vt. 352, 357 (2000). The DRB’s second vote at the November meeting, on 

a slightly changed motion, was similarly ineffective, resulting in a vote of three in favor 

and two opposed. 

Given the lack of a “concurrence of a majority” of the members of the DRB, and 

the inability of the DRB to take “action” on Appellant’s application at the November 20, 

2007 meeting, it was permissible for the DRB to vote to continue the hearing until more 

members would be present. The DRB did not, strictly speaking, vote to reconsider, 

rather, it simply continued the hearing to a future date on which enough DRB members 

would be present to take effective action on the application. 

As discussed in In re Appeal of Dunn, even if the DRB in the present case had 

voted to reconsider or reopen an effective “action” taken on November 20, rather than 

simply to continue the hearing so that an effective vote of the DRB could be taken, the 

DRB properly warned the December 19, 2007 hearing and gave all interested parties the 

opportunity “to present any additional evidence and argument at the hearing on the 

reopened decision” so that there was “no prejudice either to parties favoring the 

original decision, nor to parties intending to appeal the original decision.” Appeal of 

Dunn, slip op. at 5. The fact that Appellant in the present case chose not to present 

additional evidence does not make the DRB’s deliberations and vote on December 19, 

2007 improper.

In reconsidering a decision, members of a DRB are free to vote differently than 

they had initially voted; if they were not, reconsideration would have no purpose. As 

this Court recognized in In re Appeal of Dunn, “it is far more efficient for [a DRB] to 
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have the opportunity to correct its own decisions than to have the reviewing court 

necessarily make the correction.” Appeal of Dunn, slip op. at 4. Reconsideration allows 

a DRB to correct errors by providing its members an opportunity to consider the 

evidence anew and to vote accordingly. Similarly, in the present case the DRB members 

who had been present at the first hearing were free to change their vote upon further 

consideration of the evidence and further deliberations among themselves; their change 

from the initial attempted vote does not render their December 2007 decision void. 

Question 1 – Participation of DRB members not present at November hearing

In Vermont, even in a case using the more formal proceedings necessary to have 

an appeal be considered on the record, an absent member is allowed to participate in 

the vote if that person listens to an audio or video recording of any missed testimony 

and reviews all the exhibits and other evidence. 24 V.S.A. § 1208(b). Such procedure is 

also sufficient under Vermont law in order to comply with due process, Lewandoski v. 

Vt. State Cols., 142 Vt. 446, 452–53 (1983); In re JLD Props. – Wal Mart St. Albans, No. 

132-7-05 Vtec, slip op. at 9 (Vt. Envtl. Ct. Sept. 5, 2006) (Wright, J.); see generally 4 K. 

Young, Anderson’s American Law of Zoning § 22.46 (4th ed. 1997 & Supp. 2008) 

(discussing voting by board members who did not attend hearings), unless the record 

available to the absent board members does not provide a reasonable basis for 

evaluating the testimony or other evidence in question, In re Villeneuve, 167 Vt. 450, 

455–57 (1998) (members present at hearing viewed and test drove vehicle in question; 

absent members who did not do so should not have participated in the decision). 

In the present case, the two absent members who participated in the decision 

stated on the audio tape at the outset of the December 19, 2007 hearing that they had 

listened to the tape of the previous day of hearing and had examined all the 

documentary evidence. We need not determine whether the record available to them 

provided a reasonable basis for evaluating the evidence, because the December 19, 2007 
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vote was unanimous. That is, even if the votes of the two DRB members who had not 

been present at the November 20, 2008 hearing had not been counted, the result would 

have been five-to-zero against approval of the variance. 

In a municipality that has not adopted the procedures necessary to have its 

appeals be on the record, this Court is directed by statute to consider the application de

novo, applying the substantive standards applicable in the tribunal appealed from. 10 

V.S.A. § 8504(h); V.R.E.C.P. 5(g). In such de novo cases the Court does not generally 

examine procedural defects at the municipal level, unless they are so egregious as to 

implicate basic questions of fairness and impartiality. See, e.g., In re JLD Props., slip op. 

at 4–8 (board member’s appearance of pre-judgment required Court to examine 

procedural defects at municipal level). No such pre-judgment or other egregious 

behavior is alleged to have contaminated the vote in the present case. The participation 

of the two members who had been absent for the November 2007 hearing did not 

render the December 2007 decision void. 

Question 3 – Deemed Approval

 Under the state statute governing DRB procedure, a DRB “should close the 

evidence promptly” after all parties have submitted any requested information, and 

“shall adjourn the hearing and issue a decision within 45 days after the adjournment of 

the hearing.” 24 V.S.A. § 4464(b)(1). A DRB’s failure “to issue a decision within this 

period shall be deemed approval and shall be effective on the 46th day.” Id. Decisions 

must be in writing and must include “a statement of the factual bases on which the 

[DRB] has made its conclusions and a statement of the conclusions.” Id. “The minutes 

of the meeting may suffice” as such a decision, provided that “the factual bases and 

conclusions relating to the review standards are provided in conformance with [§ 

4464(b)(1)].” Id. 
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As discussed in In re Valois Airplane Storage Application, No. 254-11-07 Vtec, 

slip op. at 5–8 (Vt. Envtl. Ct. Sept. 23, 2008) (Wright, J.), the statutory provision for 

deemed approval “is ‘intended to remedy indecision and protracted deliberations on 

the part of zoning boards and to eliminate deliberate or negligent inaction by public 

officials.’” In re McEwing Services, LLC, 2004 VT 53, ¶ 21, 177 Vt. 38 (quoting In re 

Fish, 150 Vt. 462, 464 (1988)). Deemed approval is not appropriately applied to timely 

decisionmaking, even if the decision itself is technically deficient. See In re McEwing, 

2004 VT 53, ¶ 21 (collecting cases inappropriate for deemed approval because a timely 

decision was rendered, despite defects in decision or decisionmaking process). 

Applying the deemed approval remedy to situations without protracted deliberations, 

indecision, or deliberate or negligent inaction, could instead result in approval of 

permits “wholly at odds with the zoning ordinance.” In re Appeal of Newton Enters., 

167 Vt. 459, 465 (1998). 

 In the present case the DRB began its hearings on Applicant’s application on 

November 20, 2007. A DRB may continue its hearings, provided that the time and place 

of the continued hearing is announced at the prior hearing. 24 V.S.A. § 4468. Even if 

the December 19, 2007 hearing did not constitute a ‘public hearing’ sufficient to prevent 

deemed approval in the absence of a timely decision from the DRB, that is, if it was only 

a deliberative session, In re McEwing, 2004 VT 53, ¶ 16, the decision was timely if 

measured from the November 20, 2007 hearing to the December 28, 2007 written 

decision. 

Unlike under the former statute, which turned on when the DRB had voted or 

“rendered” a decision, the current statute requires the DRB actually to “issue” its 

decision in writing or in the minutes within the required period. 24 V.S.A. § 4464(b)(1). 

Compare, e.g., Leo’s Motors, Inc. v. Town of Manchester, 158 Vt. 561, 565 (1992) 

(decision “finally made” at meeting), with In re Dufault Variance Application, No. 287-

12-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. Aug. 4, 2008) (Wright, J.) (meeting minutes 
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reflected a vote, conclusions, and reasoning preventing deemed approval); In re Valois, 

slip op. at 5–8. The minutes of the December 19, 2007 hearing fail to meet the statutory 

requirement to be sufficient as a decision, as they just record the vote and do not 

provide either a “statement of the factual bases” for the DRB’s conclusions, or a 

“statement of the conclusions.” 24 V.S.A. § 4464(b)(1). Accordingly, the deemed 

approval period must be counted from the November 20, 2007 hearing to the December 

28, 2007 written decision, a period of thirty-eight days. 

 Because the December 19, 2007 vote was not void and the written decision issued 

on December 28, 2007 was within the required time when measured from the 

November 20, 2007 public hearing, deemed approval did not occur. 

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED 

that Appellant’s Motion for Partial Summary Judgment is DENIED, and summary 

judgment is entered in favor of the Town on Questions 1, 2, and 3 of the Statement of 

Questions. 

Done at Berlin, Vermont, this 14th day of November, 2008. 

 _________________________________________________ 

 Merideth Wright 

 Environmental Judge