STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Stonybrook 

Condominium Homeowners=

Assn.

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Docket No. 14-1-02 Vtec

Decision and Order on Cross-Motions for Partial Summary Judgment

Appellant Stonybrook Condominium Homeowners= Association appealed from a decision of the 

Planning Commission of the Town of Stowe, denying its application for a subdivision, to transfer 

a density unit to the subdivided parcel, and for a waiver of a requirement applicable to an 

Agricultural Planned Residential Development (PRD). Appellant is represented by Gerald R. 

Tarrant, Esq. and Peter G. Anderson, Esq.; interested parties are represented by Jeff W. Lively, 

Esq.;and the Town is represented by Joseph S. McLean, Esq. Appellant and the Town have 

moved for summary judgment on Questions 1 and 4 of the Statement of Questions. The Town 

has also moved to dismiss Questions 2, 3, 4, 5, 7, and 8 of the Statement of Questions.

The following facts are undisputed unless otherwise noted.

The property at issue in this appeal is part of an existing Agricultural PRD of 116.72 acres 

approved in 1992, known as Stonybrook. Appellant applied1to the Planning Commission on 

September 7, 2001 to subdivide a 16.4-acre parcel within the Agricultural PRD , to transfer a 

density unit (previously approved within the Agricultural PRD but at another location) to the 

subdivided parcel, and for a waiver of the increased setback requirement otherwise applicable to 

the property. The 16.4-acre parcel is located in the Rural Residential 5 (RR-5) zoning district and 

in the Meadowland Overlay district. 

The Planning Commission warned a public hearing on the application and held it on October 9, 

2001. After taking testimony, the Planning Commission members voted to close the public 

hearing, and set the regularly-scheduled meeting of October 23, 2001 as the date on which they 

would deliberate.

The Director of Planning for the Town is not a voting member of the Planning Commission; 

among other duties, he performs staff functions for the Planning Commission. Between October 

9, 2001 and October 23, 2001, he received various communications regarding Appellant= s 

application, including a letter from an individual owner of one of the Stonybrook condominiums

complaining about lack of individual notice to each condominium owner, and requesting that the 

hearing be reopened.

On October 23, 2001, the Planning Commission held an open deliberative session on Appellant=

s application, at which the Planning Director reported that since the October 9, 2001 hearing he 

had received A pertinent information@ which the Planning Commission might want to consider at 
an additional public hearing that would have to be warned for the purpose, and that with the time 

needed for the warning, such additional public hearing could be scheduled for November 27, 

2001. The Planning Commission discussed whether to reopen, and at the October 23, 2001 

hearing voted unanimously to reopen the hearing on Appellant= s application.

Over Appellant= s objection, on November 27, 2001, the Planning Commission held the warned 

reopened public hearing on Appellant= s application, took additional evidence and argument on 

the application, voted again to close the hearing, and voted to go into deliberative session. By 

written decision dated December 19, 2001, the Planning Commission denied the application. In 

evaluating the application, the Planning Commission considered evidence suggesting that 

Appellant planned to resell the 16.4-acre parcel to a purchaser with plans to develop a 

commercial equestrian facility on the parcel.

Motion to Dismiss Questions 2, 3, 4, 5, 7, and 8 (former numbering) of the Statement of 

Questions

This appeal will be heard de novo before this Court. Appellant has filed an amended Statement 

of Questions and the Court will consider the motion to dismiss as it applies to the amended 

Statement of Questions. Former Question 3 has been withdrawn; the new Questions 1 through 7 

correspond sequentially to former Questions 1, 2, 4, 5, 6, 7, and 8.

Amended Questions 5 and 6 now pose appropriate questions in this de novo proceeding. 

Amended Questions 3 and 4 also can be read to pose appropriate questions in this de novo

proceeding, with the understanding that the Court sits in place of the planning commission, so 

that the issues are whether the Court in the de novo proceeding should consider a prospective 

purchaser= s potential use of the property or should consider any past permit violations on the 

part of the applicant.

Amended Question 7 poses a conflict of interest question at least as to the Planning Commission 

members, and is potentially appropriate for consideration by this Court, but only if the 

disqualification of those four of the ten members present on November 27, 2001 would have 

changed the result and if Appellant is seeking a remand for the Planning Commission to consider 

the application anew without the participation of those members. Otherwise, amended Question 

7 is subject to being dismissed as moot.

Similarly, amended Question 2 poses a procedural question potentially appropriate for 

consideration by this Court, but only if the individual condominium owners still should be 

notified and if Appellant is seeking a remand for the Planning Commission to consider the 

application anew after the individual owners are notified. Otherwise, amended Question 2 is 

subject to being dismissed as moot, especially as those individual owners are free to apply for 

interested party status in the present de novo proceeding.

Accordingly, amended Questions 7 and 2 will be dismissed as moot effective July 23, 2002 

unless by July 22, 2002, Appellant files a brief memorandum and supporting documentation, 

including a copy of the decision appealed from, requesting remand, showing how the 

disqualification of those four members would have changed the result, and showing how the 
prospective notification of the individual condominium owners would affect the present 

proceeding, if at all. If such a memorandum is filed, the Town may file a responsive 

memorandum so that it is received at the Court on or before July 30, 2002, and the Court will 

rule on the remand request and the mootness of amended Questions 7 and 2 on or about August 

5, 2002. 

Question 1 of the Statement of Questions

Appellant argues that the Planning Commission had no authority to reopen the proceedings after 

the October 9, 2001 vote to close them, and that the delay of the decision until December 19, 

2001 should have resulted in the deemed approval of the application.

The state statute and Town= s subdivision regulations both provide that a Planning Commission= s 

failure to act on an applicant= s subdivision application within 45 days after the public hearing 

results in the so-called > deemed approval= of that application. 24 V.S.A. ' 4417; ' 3.2 of the 

Town of Stowe Subdivision Regulations. However, deemed approval is only applied to remedy 

deliberate or negligent failure of a board to render a decision. See, e.g., Appeal of Newton 

Enterprises, 167 Vt. 459 (1998); Hinsdale v. Village of Essex Junction, 153 Vt. 618 (1990). In 

the present case, there was no inaction on the part of the Planning Commission. Rather, within 

the time allowed for its deliberations it voted to reopen the proceedings, and, still within the time 

allowed for its deliberations, it notified Appellant and other interested parties of the reopened 

hearing, and also provided a published warning of that reopened hearing. After the second 

closing of the public hearing on November 27, 2001, the Planning Commission rendered its 

decision within the allowed 45-day period.

Appellant argues that the language in ' 3.2 allowing an agreed extension of the 45-day period 

implies that the Planning Commission cannot reopen a hearing absent such agreement. However, 

the > agreed extension= language only governs the length of time available to the Commission 

from the closure of the hearing to the rendering of the decision on the application. It does not 

address the conditions under which a Planning Commission can decide to reopen the proceedings 

and reset the 45-day clock.

This court analyzed the problem of whether and when a municipal body can reopen proceedings 

in Appeal of Dunn, Docket No. 21-1-98 Vtec (Vt. Envtl. Ct., March 8, 1999). The reasoning in 

Dunn, slip op. at 4-5, applies in the present circumstances:

Any quasi-judicial board, whether municipal or administrative, should be allowed a limited time 

to reopen a decision and to take new evidence, if only for reasons of judicial and litigant 

economy in the reviewing court. That is, it is far more efficient for such a board to have the 

opportunity to correct its own decisions than to have the reviewing court necessarily make the 

correction. Further, even in a de novo proceeding, the reviewing court may find it necessary to 

remand the matter to the board for it to consider an issue in the first instance. In re Maple Tree 

Place, 156 Vt. 494, 499 (1991). It is much better practice to avoid unnecessary remands [footnote 

omitted] by allowing a board, which realizes that it has acted on incomplete or inadequate 

information, or is informed of previously-unavailable evidence, to reopen the initial proceeding 

if such a procedure may result in a sounder decision, so long as the reopening works no prejudice 
on the parties and they have adequate notice of the reopened hearing. 

Litigants also are entitled to a reasonably prompt [footnote omitted] certainty of decision at the 

municipal level, so that they can act on or appeal a granted or a denied permit, as the case may 

be. Just as with decisions of an administrative officer, A there should, in fairness, come a time 

when the decision@ becomes final, so that a person may appeal from it or may rely on it to A

proceed with assurance instead of peril.@ Levy v. Town of St. Albans, 152 Vt. 139, 142 (1989), 

citing Graves v. Town of Waitsfield, 130 Vt. 292, 295 (1972).

These policy consideration may best be balanced to allow a ZBA to reopen a decision under the 

following conditions. First, prior to the expiration of the time for appeal of the original decision, 

the ZBA must vote to reopen and must provide the interested parties and the public with proper 

notice of the hearing to be held on the reopened decision. Second, the ZBA must allow all 

interested parties to present any additional evidence and argument at the hearing on the reopened 

decision. Under these conditions, there is no prejudice either to parties favoring the original 

decision, nor to parties intending to appeal the original decision.

In the present case, the Planning Commission voted to reopen during its original deliberations, 

and before even having rendered an initial decision. It provided the interested parties and the 

public with proper notice of the reopened hearing and allowed all interested parties to present 

additional evidence and argument at the reopened hearing. Under these conditions, there was no 

prejudice either to parties seeking approval or those seeking disapproval of the application. 

Accordingly, summary judgment is entered in favor of the Town on Question 1 of the Statement 

of Questions.

Amended Question 3 (former Question 4) of the Statement of Questions

Appellant argues that the Planning Commission, and hence this Court, is precluded from 

considering the possible prospective use of a parcel when ruling on the subdivision of a lot. The 

problem posed by this question is only an issue because the application involves a subdivision 

request and also may involve modifications to the Agricultural PRD approval, to transfer a 

density unit to the new parcel and to waive the otherwise-applicable setback requirement. 

Although the three approvals were applied for together, and are all within the purview of the 

Planning Commission rather than the ZBA, Appellant is correct that they are not necessarily 

linked. However, without either the application or the decision appealed from, we cannot 

determine whether the subdivision request necessarily requires an amendment to the Agricultural 

PRD simply to effect the subdivision, and without regard to what may or may not be built on the 

subdivided parcel. Accordingly, summary judgment must be denied on this question as material 

facts are in dispute, or at least have not been provided, regarding the application and the 1992 

Agricultural PRD approval decision. 

Based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= s Motion for 

Summary Judgment is GRANTED and Appellant-Applicant= s Motion for Summary Judgment is 

DENIED as to Question 1 of the Statement of Questions, and summary judgment is DENIED as 

to amended Question 3 of the Statement of Questions, as material facts are in dispute. Former 
Question 3 of the Statement of Questions has been withdrawn, the Town= s Motion to Dismiss 

amended Questions 3, 4, 5, and 6 is DENIED, and amended Questions 2 and 7 will be dismissed 

as moot effective July 23, 2002, unless motions are filed by July 22, 2002 as discussed above.

The hearing on the merits remains scheduled for September 5, 2002.

Done at Barre, Vermont, this 9th day of July, 2002.

___________________

Merideth Wright 

Environmental Judge

Footnotes

1. Neither the application nor the December 19, 2001 decision has been provided to the Court. 

From the material available, it is not possible to determine whether the three requests were made 

separately or on the same application, or whether any of the requests was filed as an amendment 

of the 1992 Agricultural PRD. The minutes of the November 27, 2001 proceeding do reflect at 

least that the Planning Commission had all three requests before it in the proceedings that 

resulted in the decision appealed from.