1 STATE OF VERMONT ENVIRONMENTAL COURT

} In re Huntington Remodeling Application } Docket No. 210-10-07 Vtec }
Decision on Multiple Motions Appellant-Applicant George Huntington (“Applicant” ) has appealed a decision of the Town of Newbury Planning Commission (“Planning Comm ission”), denying Mr. Huntington’s zoning application for authority to remodel part of his multi-family building. Applicant is represented by Mark D. Nemeth, Esq. Appellee Town of Newbury (“Town”) is represented by Charles D. Hickey, Esq. Applicant and the Town have filed cross-motions for summary judgment. Applicant has also filed a motion to clarify his initial Statemen t of Questions, to which the Town has replied with an objection. We address all pending motions in this Decision.
Factual Background For the sole purpose of putting the pending motion s in context, we recite the following material facts, which are undisputed unless otherwi se noted:
1. In 1988, Applicant bought a multi-family building ( “Building”) located at 9 Creamery Street in the Wells River Commercial Zoning Distric t (“WRC District”).
2. At the time that Applicant bought the Building in 1 988, it contained three residential apartments. Since that time, it is unclear how man y apartments the Building has contained, and whether these apartments have remained in use. The parties dispute whether the third apartment was abandoned for more than one year.
3. The Town Listers’ records for 1993, 1994, and 1996 describe the Building as containing only two residential apartments.
4. Applicant filed a grievance over the appraised valu e for the Building for the 1998 tax year. It is unclear from the record now before us whether Applicant’s tax grievance was successful. However, the 1998 Listers’ records ref lect that the Building only contained two residential apartments at that time. (See Exhibit 4 attached to the Town’s Statement of Material Facts.)2

5. The Town Listers also inspected Applicant’s Buildin g in 2007. While the 2007 Listers’ records include a hand-written notation that says “ After grievance,” we have not been advised of whether this note is in reference to Applicant’s 19 98 tax grievance or to some more recent grievance. Nonetheless, apparently after the Liste rs’ 2007 inspection, the Building was reported to contain only two residential apartments.
6. Applicant has provided credible documentation conce rning substantial repairs that were made while the Building contained three apartments. The Town has not contested that Applicant caused these repairs to be made to his Building. H owever, Applicant’s affidavits do not contradict the Town’s assertion, substantiated by t he Listers’ cards and affidavits, that the Building was actually used as a two-apartment struc ture for at least some amount of years.
7. In April 2007, the Town’s Zoning Administrator lear ned that Applicant was remodeling the Building. The Town described this work as “con struct[ing] a third residential unit.” (Town’s Statement of Material Facts at #9.) Applicant disp utes this characterization and states that he was merely remodeling an apartment that already exi sted.
8. On May 2, 2007, the Zoning Administrator notified A pplicant that he needed site plan approval from the Planning Commission before he cou ld build or use a third residential apartment in the Building.
9. On June 19, 2007, the Zoning Administrator issued a notice of violation, which was then superseded by a June 27, 2007 notice of violation, which alleged that Applicant was reestablishing a non-conforming use (i.e., the thir d apartment in the Building) without the needed site plan approval. Applicant did not appeal eithe r notice of violation.
10. On July 3, 2007, Applicant submitted an application
, 1 requesting authority to “Remodel apt #3 with new kitchen, bath, liv. rm + 2 bedrooms .” The application included a “Schedule B: Site Plan Review” form, which noted that Applicant’ s project would require additional septic and water services and that it would impact traffic by adding four parking spaces to the rear of the

1 We note that the form provided to Applicant by th e Town does not have a specific title. Rather, the text at the top of this form directs that this form “serves an as a pplication for all requested zoning reviews.” (See Exhibit 10 attached to the Town’s Statement of Material Facts. ) The Town argues that Applicant would be entitled to maintain a three-apartment facility, once he obtained site p lan approval, but that because Applicant failed to apply for site plan approval, the Town is entitled to summary judg ment. But we are left to wonder what further appli cation or information an applicant seeking site plan approval is required to provide, particularly given the app lication form used here and the site plan data Applicant provided

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building. This form also stated that the project w as not expected to have any impact on noise levels in the area, but that it could affect school enrollment depending on the tenants.
11. On July 26, 2007, the Planning Commission held an i nitial hearing on Applicant’s request. The Commission then continued its review of Applicant’s request during its August 23, 2007 hearing.
12. On August 31, 2007, the Planning Commission denied Applicant’s application. The Planning Commission issued the following four Findi ngs of Fact as the complete basis for its
decision:
1. The property in . . . question at 9 Creamery Street was placed in violation by the Zoning Administrator. The violation consisted of re-establishment of a non-conforming use. 2. The applicant did not appeal the decision of the Zo ning Administrator within the statutory 15 days. 3. Since the decision of the Zoning Administrator was not appealed, the decision stands. 4. Therefore there is no apartment #3 as stated in the application. Planning Comm’n, Application for Site Plan Approval : Findings and Decision, Permit Application No. 2007-059, at 1–2 (Aug. 31, 2007) (“ Planning Commission’s Decision”).
13. Applicant thereafter filed a timely appeal of the Planning Commission’s Decision with
this Court.

Discussion Although the parties filed cross-motions for summar y judgment before Applicant made a motion to amend the Statement of Questions, we must address these issues in the opposite order. After all, the Statement of Questions limits the sc ope of the appeal before us. V.R.E.C.P. 5(f).
A. Motion to Amend the Statement of Questions Applicant initially submitted two questions in his Statement of Questions. In a subsequent filing, Applicant voluntarily agreed to withdraw Question 1. (Applicant’s Reply in Opp’n to Town’s Mot. Summ. J. at 4.) Question 1 is therefore DISMISSED

. All that now remains from Applicant’s initial State ment of Questions is Question 2, which asks, “Is the Newbury Planning Commission req uired to consider Permit Application 2007–059 for remodeling of the lawful pre-existing non[-]conforming Apartment #3 at the subject property?” Applicant now asks this Court t o amend his Statement of Questions by replacing Question 2 with the following two questio ns:4

1. Did the Newbury Planning Commission breach [its] ob ligations to provide Appellant with procedural and substantive due proce ss under state and local zoning laws when it denied Permit Application 2007- 059?
2. Is the Newbury Planning Commission required to cons ider [on] the merits Permit Application 2007-059 for remodeling of the s ubject property and subsequently enter findings in support of a final d ecision? (Applicant’s Mot. to Clarify Appellant’s Questions on Appeal at 3.) This Court has previously noted that motions to am end a Statement of Questions (like motions to amend a complaint) should “be liberally granted, . . . [but] only . . . when they do not prejudice the other parties.” Appeal of Town of Fa irfax , No. 45-3-03 Vtec, slip op. at 5 (Vt. Envtl. Ct. June 13, 2005) (Wright, J.) (“Fairfax ”); accord Appeal of Osherenko , No. 79-5-04 Vtec, slip op. at 6 (Vt. Envtl. Ct. June 22, 2005) (Durkin, J.). We must therefore look at whether granting Applicant’s motion to amend would prejudic e the Town. The Town argues that it would be prejudiced if thi s Court were to grant Applicant’s motion to amend. In particular, the Town correctly notes that it has already spent considerable resources addressing the issues raised in the initi al Statement of Questions. The Town’s claim of prejudice also finds support in the fact that Appli cant filed his motion to amend on June 18, 2008, which is more than seven months after the fil ing of the initial October 29, 2007 Statement of Questions. We have previously found prejudice to another part y (and therefore denied a motion to amend) in cases where the motion to amend was made, for instance, “not only after the trial, but after the decision was issued.” Appeal of Albert e t al. , No. 110-6-03 Vtec, slip op. at 4 (Vt. Envtl. Ct. Mar. 21, 2006) (Wright, J.) (“Albert ”). We have also found prejudice when a motion to amend is made by a party that had already amende d its questions once and that had also already lost on summary judgment. See Fairfax , No. 45-3-03 Vtec, slip op. at 5. Applicant’s motion to amend here is not as problematic as the m otions in Albert or Fairfax because Applicant made his motion before this Court issued any decisi on in this case (either on the merits or on summary judgment). Further, although Applicant’s m otion to amend was filed many months after the filing of his original Statement of Quest ions, we have previously allowed parties to amend a statement of questions at similarly late ti mes in the proceedings. See, e.g., Fairfax , No. 45-3-03 Vtec, slip op. at 6 (recognizing the validi ty of an initial amendment that was made “about six months after filing the initial statemen t of questions”). Applicant has also provided a reasonable explanation for the delay in filing his motion to amend. We can therefore say that5

this motion was not “‘unreasonably delayed.’” Appe al of Osherenko , No. 79-5-04 Vtec, slip op. at 6 (Vt. Envtl. Ct. June 22, 2005) (Durkin, J.) (c iting Stratton v. Steele , 144 Vt. 31, 36 (1984)); accord In re Guardianship of L.B. , 147 Vt. 82, 84 (1984) (noting that approval of an amendment is generally granted when it “is neither frivolous nor made as a dilatory maneuver or in bad faith”). We therefore conclude that to GRANT Applicant’s motion to amend his Statement of Questions is a proper exercise of our discretion. We also note that the issues raised by Applicant’s amended Statement of Questions are closely related to the issues raised in the initial Statement of Questions. This provides yet another reason that granting Applicant’s motion to amend would not create undue prejudice to the Town. From the beginning, Applicant has genera lly asked this Court to evaluate the validity of the Planning Commission’s Decision to deny Appli cant’s permit application on the basis of the un-appealed notice of violation. Applicant has never asked this Court (in either the original or the amended Statement of Questions) to hold that Applicant’s permit application should have been granted. Rather, the only remedy that Applica nt seeks is that we set aside the Planning Commission’s Decision to deny the permit. In both Questions of the amended Statement of Questions, Applicant seeks a remand to the Planning Commission to decide this issue on the
merits. We view the constitutional issues raised i n Question 1 of the amended Statement of Questions as just another way of arguing that the P lanning Commission should have considered Applicant’s permit application on its merits. Thus , the only question that is properly before this Court is whether to remand Applicant’s permit appli cation to the Planning Commission, and we can decide upon that key issue today. For all of t hese reasons, we find that the Town will not be unduly prejudiced if we grant Applicant’s motion to amend his Statement of Questions.
B. Cross-Motions for Summary Judgment In reviewing the decision that was before the Plann ing Commission, we look at the issue de novo. 10 V.S.A. § 8504(h); V.R.E.C.P. 5(g); see also 24 V.S.A. § 4472(a). This means that while we have the utmost respect for the Planning C ommission and its individual members, we should not defer to the specific determination that is now before us on appeal. Rather, we are directed to make an independent evaluation by consi dering the matter “‘as though no action whatever had been [previously] held.’” Chioffi v. Winooski Zoning Bd. , 151 Vt. 9, 11 (1989) (quoting In re Poole , 136 Vt. 242, 245 (1978)).6

Each party has asked this Court to grant summary ju dgment in its favor. We may only grant summary judgment when “the pleadings, deposit ions, [and] answers to interrogatories, . . . together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3). Generally, the burden of proof is on the party requesting summary judgment. Chapman v. Sparta , 167 Vt. 157, 159 (1997). When presented with cross-motions for summary judgment, we must consider each
motion in turn and afford all reasonable doubts and inferences to the party opposing the motion
under consideration. DeBartolo v. Underwriters at Lloyd’s of London , 2007 VT 31, ¶ 8, 181 Vt. 609 (citing Toys, Inc. v. F.M. Burlington Co. , 155 Vt. 44, 48 (1990)). As mentioned above, Applicant’s amended Question 2 addresses the heart of Applicant’s overall prayer for relief—namely, that Applicant’s zoning request should not be denied merely because of a zoning violation that became final whe n Applicant failed to appeal it within 15 days. Although the parties disagree on whether the Planning Commission erred when it made its Decision, the parties appear to be in agreement as to what the Planning Commission should do going forward. The Town concedes that Applicant ha s a right to have the Planning Commission evaluate Applicant’s request for site plan approval of a three-unit building, although the Town argues that Applicant must first submit a new permi t application. Section 4.12.1.5 of the 2007 Newbury Zoning Regulat ions (“Regulations”) recognizes a multi-unit dwelling of less than five units as a pe rmitted use in the WRC District. 2 At the same time, Regulations § 2.9 requires site plan approval from the Planning Commission before a zoning permit may issue for any use or structure in volving three or more residential apartments. It appears as if Applicant implicitly asked the Pla nning Commission for the required site plan approval, and to date the Planning Commission has n ot evaluated the merits of that request. In short, to the extent that the Town believes that a further application or supporting materials are required from Applicant before the Planning Commiss ion may conduct a review of Applicant’s site plan request, the Town has left us to wonder w hat further is required. The disagreement in this case also stems from Appli cant’s decision to use the word “remodel” when describing his plans for a third apa rtment in his Building. The word “remodel” implies that site plan approval for the third apart ment already existed; this apparently led the

2 Similarly, section 4.10.1.5 of the 2006 Newbury Zo ning Regulations also recognizes such buildings as a permitted use. We cite to the 2007 Regulations throughout th is decision because those are the regulations that were in effect at the time that Applicant submitted his permit applic ation on July 3, 2007.7

Planning Commission to deny Applicant’s permit appl ication summarily by noting that “there is no apartment #3 as stated in the application.” Pla nning Commission’s Decision at 2. The Town explains the situation as follows: The Town does not dispute th[e] fact that the [Appl icant] had the right to apply for a permit to add a third unit in the building. See [In re] Newton Enterprises
, 167 Vt. 459[, 463] (1998). However, this is not wh at the [Applicant] did. Rather, he filed a permit to remodel the third unit. This application assumed that the third unit was grandfathered[,] which it was not. It was for this reason that the [P]lanning [C]omission denied his request.
(Town’s Mot. Summ. J. at 4 (parallel citation omitt ed).) The Town’s position that Applicant “did not seek a permit for a third unit” (Town’s St atement of Material Facts at #16) appears at odds with the direction on the Town-supplied applic ation form that it is to be used “for all requested zoning reviews” (Town’s Exhibit 10). We are left to wonder whether the Planning Commission would have evaluated the merits of Appli cant’s request for site plan approval if Applicant had used the words “site plan” or “constr uct”—rather than “remodel”—in his application. The Town correctly notes that Applicant currently n eeds site plan approval to do the work necessary to operate a third apartment within his Building. The Zoning Administrator issued a notice of violation on June 27, 2007, and Applicant failed to appeal that violation within 15 days. As a result, the fact of the violation—na mely, the fact that the third apartment, while it may have once been a lawful, pre-existing, non-conf orming use, became an illegal use once discontinued for more than one year—cannot now be c hallenged, either directly or indirectly, in any subsequent proceeding, including this one. See , e.g., City of S. Burlington v. Dep’t of Corr.
, 171 Vt. 587, 588–89 (2000) (mem.). Nevertheless, as the Town concedes and as our Supre me Court has held, the fact that a violation exists does not prevent Applicant “from s eeking a permit to make its . . . uses lawful.”
In re Newton Enters. , 167 Vt. at 463. Applicant claims that he has don e precisely this by submitting the application now before us. Although Applicant should have used the words “site plan” or “construct” rather than “remodel,” this mi stake is understandable, given that Applicant was not actually constructing a new building. We a lso note that it is unfair to expect permit applications to be filled out with the type of prec ision that lawyers might use when completing applications themselves. At times, even experience d lawyers (and judges) do no better.8

Applicant filled out the application here without l egal assistance, and Applicant did an adequate (if not perfect) job of conveying the appr oval that he sought. Further, we conclude that there is no evidence before us that Applicant purpo sefully made his zoning application misleading. Rather, Applicant made it clear that h e wished to complete remodeling work on a third apartment in his Building. The Planning Comm ission had before it a form labeled “Schedule B: Site Plan Review,” which noted that Ap plicant’s project would require additional septic and water services and that it would impact traffic by adding four parking spaces to the rear of the building. This form also noted that th e project could affect school enrollment, depending on the tenants for the third apartment. These effects would only arise from increasing the number of tenants in the Building The Town was therefore on notice, albeit in a less than clear manner, that Applicant proposed to expand the use of his Building by adding tenants to a third apartment in the Building. For all of these reasons, the Planning Commission h ad a duty to evaluate whether to provide site plan approval for Applicant’s proposal for a third residential apartment in his Building. The Planning Commission never evaluated Applicant’s permit application in this light. The Planning Commission’s Findings only mention the Zoning Administrator’s notice of violation and Applicant’s failure to appeal that vi olation. The Findings of Fact ignore the possibility that the notice of violation does not p revent Applicant “from seeking a permit to make
its . . . uses lawful.” In re Newton Enters. , 167 Vt. at 463. We hold that Applicant was seeking site plan and zo ning approval when he submitted his application. The Town’s application form specifica lly states that although additional information and permits might be required, the form “serves as an application for all requested zoning reviews.” The Town therefore had a duty to review the application in this light. Thus, we hereby VACATE the Planning Commission’s August 31, 2007 Decision and REMAND the pending application to the Town of Newbury Planning Commission for consideration of Applicant’s request for site plan and zoning approv al to construct and use a third residential apartment in his Building. Nothing contained in th is Decision should be regarded as restricting the Planning Commission from requesting or receivin g additional documentation in support of the application.9 CONCLUSION Question 1 of Applicant’s Statement of Questions is DISMISSED , and we GRANT Applicant’s motion to replace Question 2 with the t wo Questions listed in Applicant’s amended Statement of Questions. As a consequence of our determinations on the pendi ng cross-motions for summary judgment, we hereby VACATE the Planning Commission’s August 31, 2007 Decision and
REMAND the pending application to the Planning Commission to consider Applicant’s request for site plan and zoning approval for a third resid ential apartment in his Building. This completes the proceedings on the pending appli cation before this Court. A Judgment Order accompanies this Decision.

Done at Berlin, Vermont this 5th day of November 20 08.

___________________________________ Thomas S. Durkin, Environmental Judge