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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Environmental Division 

### Docket No. 130

- 11

- 15 Vtec

Bold Zoning Permit Amendment 

### DECISION ON MOTION

Decision on Motion for Summary Judgment Appellants James and Donna Bold appeal an October 1 4, 2015 decision by the Woodstock Village Development Review Board (“DRB”) denying th eir request for relief from a zoning requirement to reinstall shutters on their home. A n identical, unsuccessful request for the house was made in 2014 by the previous owner. The DRB re jected the Bold application under the successive-application doctrine, which bars a secon d application if no substantial change in circumstances has occurred since a first, similar a pplication was considered. In their appeal, the Bolds have asked this Court to answer two questions in their Statement of Questions. Question 1 asks whether their application should be approved. Question 2 asks whether the successiveapplication doctrine precludes consideration of Que stion 1. In response, the Village of Woodstock (“Village” or “Woodstock”) filed a Motion to Dismiss Question 1 of Appellants’ Statement of Questions on December 23, 2015 and a M otion for Summary Judgment on March 2, 2016. The Bolds responded to the motion for summar y judgment with a memorandum in opposition filed on March 28, 2016. After the Cour t began its consideration of the pending motions, the Court advised the parties that it need ed further information to complete its analysis. See In re Bold Zoning Permit Amendment, No. 130-11- 15 Vtec, Entry Order (Vt. Super Ct., Envtl. Div. Aug. 5, 2016) (Durkin, J.). The parties suppl ied the Court with the requested materials within the following thirty days. The Court has now compl eted its research and deliberations on the pending motions. The Bolds are represented by Christopher D. Roy, Es q. The Village is represented by Todd C. Steadman, Esq.-2- Factual Background For the sole purpose of putting the pending motion s into context, the Court recites the following facts, all of which the parties either ag ree to, or the Court has determined not to be in dispute based on the record:
1. James and Donna Bold (“the Bolds”) own and reside a t 16 Pleasant Street in the Village.
2. The Bolds’ home is in the Village’s Design Review D istrict. Buildings in this District must meet special zoning requirements designed to ensure new construction, additions, and alterations fit in with existing buildings and stre etscape. Village of Woodstock Zoning Regulations § 405(A) (approved May 12, 2015).
3. On October 12, 2015, the Bolds appeared before the DRB to present their application seeking design review approval to allow the main se ction of their house to remain free of shutters. Specifically, the Bolds requested that t he Board “allow the main section of the house to remain without decorative blinds inadvertently a dded to the plan elevations approved 11/14/06.” See James and Donna Bold’s Planning & Z oning Application, a copy of which was attached as Exhibit B to Appellants’ Response to Ap pellee’s Statement of Undisputed Facts, filed March 28, 2016.
4. The DRB determined the Bolds’ application was gover ned by the successive application doctrine and barred it on that basis. The DRB did not consider the merits of the Bolds’ application.
5. In 2014, the previous owners of 16 Pleasant Street submitted an application to the DRB “to allow the main house section, built in 1830, to remain without decorative, wood blinds (shutters).” See Les and Susan Berge’s Planning & Zoning Application, a copy of which was filed with the Court on August 17, 2016. The DRB denied the Berges’ request on June 11, 2014.
6. The DRB’s June 11, 2014 decision was not appealed.
7. On October 20, 2014, this Court issued a judgment o rder on a permit amendment application for a home without shutters at 16 Mount ain Avenue in the Village of Woodstock. Sligar & Sattelberger Permit Amendment, No. 152-11- 13 Vtec (Vt. Super. Ct. Envtl. Div. Oct. 20, 2014) (Durkin, J.). By that Decision, the Court co ncluded that the Village of Woodstock Zoning Regulations did not mandate that shutters must rema in on the home after approved exterior-3-

renovations were completed. Id. at 3. The Court c oncluded that while the Regulations mandated that architectural features such as shutters be “co nsidered” for new construction and renovations, the Regulations did not “mandate” the inclusion of shutters, but rather allowed for aesthetic change. Id. at 3–4.
8. Following the Sligar ruling, the Village amended it s Zoning Regulations related to shutters. The amended Regulations were approved by the Villag e’s Board of Trustees on May 12, 2015.
9. Prior to the amendments, the Regulations stated tha t architectural features, including shutters, “shall be considered in the construction or alteration of a building. It is not intended that the details of old buildings be duplicated pre cisely, but they should be regarded as suggestive of the extent, nature and scale of details that wou ld be appropriate on new buildings or alternations.” Village of Woodstock Zoning Regulat ions § 405(G)(6) (effective Feb. 1, 2012) (emphasis added).
10. The Zoning Regulations now state that existing arch itectural features, including shutters, “shall be retained where appropriate. New details shall consider those prevailing in the immediate area.” Village of Woodstock Zoning Regul ations § 405(G)(7) (adopted May 12, 2015) (emphasis added).

Discussion
I. Scope and Standard of Review The Bolds are entitled to a de novo hearing of their appeal. 24 V.S.A. § 4472(a); acc ord 10 V.S.A. § 8504(h) (recognizing that these appeals receive a “de novo hearing on those issues which have been appealed”); V.R.E.C.P. 5(g) (“All a ppeals under this rule shall be by trial de novo”). In a de novo hearing or trial, the Court hears the evidence anew “as though no decision had been previously rendered.” In re Poole, 136 Vt . 242, 245 (1978). Our review is limited, however, to the issues raised in the Appellants’ St atement of Questions. In re Jolley Assocs., 2006 VT 132, ¶ 9, 181 Vt. 190 (quoting In re Garen, 174 Vt. 151, 156 (2002)); see also V.R.E.C.P. 5(f) (“The appellant may not raise any question on the a ppeal not presented in the statement [of questions]”). The Village has requested the Court render a decisi on on Question 2 without a hearing. Since our response to that Question may be disposit ive of this appeal, we address it first.-4-

Summary judgment may only be granted when the movin g party shows that “there is no genuine dispute as to any material fact and the mov ant is entitled to judgment as a matter of law.” V.R.C.P. 56(a) (applicable here through V.R. E.C.P. 5(a)(2)). In reviewing a motion for summary judgment, the Court gives the nonmovant the benefit of all reasonable doubts and inferences. Greene v. Stevens Gas Serv., 2004 VT 6 7, ¶ 9, 177 Vt. 90.

II. Whether the Bolds’ Application is Barred by the Suc cessive-Application Doctrine The foundational issue in this case is whether the successive-application doctrine bars consideration of the Bolds’ application. The doctr ine shares the principle of preclusion with res judicata and collateral estoppel, which prohibit pa rties from relitigating claims and issues that have been decided, all in the interest of judicial efficiency and fairness to the parties. Generally, a zoning board may not consider a second applicatio n concerning the same property after a previous application has been considered. In re Ca rrier, 155 Vt. 152, 158 (1990). The doctrine protects the integrity of zoning decisions, and pro vides some finality. Id. It does not apply when a substantial change of conditions or other conside rations materially affecting the merits of the request have intervened between the two application s. 1 Id. Vermont case law primarily focuses on changes to th e application itself, and whether those are substantial enough to warrant a second lo ok. See, e.g., In re Dunkin Donuts S.P. Approval (Montpelier), 2008 VT 139 ¶¶ 8, 13, 185 Vt . 583 (finding an appellant was free to file a successive application that addressed all the conce rns that had originally prevented approval). This Court has also held that the successive-applic ation doctrine does not bar consideration of a second, identical application when there has been a “material change in the applicable law or regulation.” In re Miller Subdivision Final Plan, No. 178-7-06, Vtec, slip op. at 6–7 (Vt. Envtl. Ct. March 21, 2007) (Durkin, J.) (holding that collater al estoppel does not apply when the law governing the relevant facts has changed), aff’d in part, rev’d in part (on other grounds) , 2008 VT 74, 184 Vt. 188. Successive applications may al so be barred by statute—24 V.S.A. § 4470(a)— which directs that an “appropriate municipal panel [and this Court on appeal] may reject an

1 The previous owners of the Bolds’ home did not app eal the DRB’s decision to deny their application to eliminate the shutters. The unappealed decision is therefore final and binding on successors in inter est. In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568; 24 V.S.A. § 4472(a), (d).-5-

[application on] appeal . . . if the appropriate mu nicipal panel [or this Court] considers the issues raised by the appellant in the appeal have been dec ided in an earlier appeal or involve substantially or materially the same facts . . . .” Id. But Vermont case law and this statute do not define in detail what “material change in the applicable law” means. Other states have, howe ver. The change must be more than minor or technical, and it should clearly benefit the app licant or application. Laurel Beach Ass’n v. Zoning Bd. of Appeals, 785 A.2d 1169, 1177 (Conn. A pp. Ct. 2001); Ford Leasing Dev. Co. v. Zoning Bd. of Adjustment, 443 A.2d 886, 887–88 (Pa. Commw. Ct. 1982). Here, the Bolds submitted essentially the same appl ication as the prior homeowners. They are seeking authority to not replace shutters that had been removed during a home renovation; this is the same request contained in t he prior owners’ application that was denied by the DRB in 2014. The Bolds argue that two material events occurred b etween the DRB’s June 11, 2014 decision on the previous application and its Octobe r 12, 2015 decision on their application. First, this Court determined that the Village’s Zoning Reg ulations in effect at the time did not mandate that shutters remain on a home following exterior r enovations. Sligar, No. 152-11-13 Vtec slip op. at 3 (Oct. 20, 2014). Instead, the prior Regul ations required only that shutters and other architectural features be “considered” when a build ing is proposed to be altered and sent a clear message that aesthetic changes were allowed. Id. The Bolds argue that this decision materially affects the merits of their application. For the f ollowing reason, we conclude that it does not. The Regulations interpreted in Sligar were changed by amendment in May 2015. Sligar is therefore irrelevant to this case, since the Regula tions interpreted by this Court in Sligar are not applicable to the Bolds’ pending permit amendment a pplication. Rather, the change that may matter is the second in tervening event, the May 12, 2015 amendments to the Village’s Zoning Regulations rela ted to shutters. Instead of merely considering whether shutters are appropriate on a h ome, the Regulations now state that shutters “shall be retained where appropriate. New details shall consider those prevailing in the immediate area.” Village of Woodstock Zoning Regul ations § 405(G)(7) (adopted May 12, 2015) (emphasis added). However, we note that this chang e in the regulatory language does not-6-

benefit the Bolds. If anything, the new Regulation s make it even more difficult for the Bolds to convince the DRB that the applicable Regulations ca n be interpreted to allow their home to remain shutter-free. The DRB “considered” whether the prior owners should be allowed to not replace the shutters on the home at 16 Pleasant Str eet and denied that request. We cannot fathom how the regulatory amendment that now states that shutters “shall be retained” on District homes “where appropriate” provides a mater ial change that favors the Appellants here. This Court also interpreted the Village’s amended R egulations in a September 2016 decision which upheld the DRB’s decision to require another homeowner to replace shutters that had been removed as part of renovation work. In re 29 Pleasant St. Design Plan Approval, No. 18- 2-16 Vtec slip op at 7–9 (Vt. Super Ct. Envtl. Div. Sept. 23, 2016) (Walsh, J.). While acknowledging the subjective aspect of requiring shutters “where appropriate,” the Court determined that the ordinance provides sufficient guidance and is not a gateway to arbitrary decision-making. Id. at 7–9 (“[T]he State and the Village have intended to give the DRB some room to interpret what is appropriate, within the bounds of what is suitable, what the prevailing conditions are in the immediate area, and with special attention given to structures in easily visible areas.”). The Regulations’ stated purpose is to evoke a classic N ew England village. Id. at 7. Thus, we fail to see how the revised Regulations co uld benefit the Bolds’ efforts to remodel their home without shutters. The DRB denie d the first application under the old Regulations, which only required the DRB to conside r shutters and other features in design review applications. Removing shutters was then pe rmissible under the former Regulations, just as this Court determined in Sligar. Under the amen ded Regulations, shutters “shall be retained where appropriate.” Village of Woodstock Zoning Re gulations § 405(G)(7) (adopted May 12, 2015). The language in the amended Regulations giv es the DRB less leeway to allow homeowners to remove their shutters in the Village’s Design Re view District. It stands to reason that if the removal was denied under the prior, more flexible Z oning Regulations, authorized removal is made more difficult under the current, less flexibl e Regulations. Because it cannot possibly help the Bolds, we conclude that the amended Zoning Regu lations do not represent a material change in circumstances that benefits the Bolds or their a pplication. We therefore conclude that the successive-application doctrine bars the DRB, and t his Court in a de novo appeal, from-7-

considering the second, identical application. The Village is therefore entitled to summary judgment on Question 2.

III. Question 1 is Moot Because the successive-application doctrine is appl icable, a second review of the Bolds’ application is barred by the successive application doctrine. The Court therefore need not consider the merits of their application, which is the legal issue raised by their Question 1. 2

Conclusion The DRB properly rejected the Bolds’ application. Question 2, which asks whether the successive-application doctrine precludes considera tion of Question 1, is therefore answered in the affirmative. Question 1, which asks whether th e Bolds’ application should be approved, is made moot by our conclusion that the successive app lication doctrine precludes consideration of the Bolds’ pending application. The Village’s M otion for Summary Judgment is therefore
GRANTED. A Judgment Order accompanies this Decision. This c ompletes the current proceedings before this Court concerning this appeal. Electronically signed on December 16, 2016 at Bratt leboro, Vermont, pursuant to V.R.E.F. 7(d).

________________________________ Thomas S. Durkin, Judge Vermont Superior Court, Environmental Division

2 Contrary to the Village’s understanding, we conclud e that this Court has jurisdiction to act on a zoni ng application presented for review by the appropriate municipal panel, even if that panel declined to co mplete its review. In re Torres, 154 Vt. 233, 236 (1990). The DRB’s decision not to hear the Bolds’ successive a pplication was a final, appealable decision. If the Court had con cluded in this de novo appeal that the doctrine did not apply, the Court’s jurisdiction would include a consideration of the merits of the application itself.