Appeal of McLaughlin

• Court: Vermont Superior Court
• Decided: March 25, 2005
• Docket: 162-09-04 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} Appeal of McLaughlin } Docket No. 162-9-04 Vtec } }

Decision and Order on Appellant's Motion for Summary Judgment on Question 3

Appellant Jocelyn McLaughlin appealed from an on-the-record decision of the

Development Review Board (DRB) of the Town of Castleton, granting approval to

Appellee-Applicants Edward and Barbara Keough for an addition to a nonconforming

building. Appellant is represented by William H. Meub, Esq.; Appellee-Applicants are

represented by Christopher H. Howe, Esq.; Interested Party Cornell Dawson represents

himself; and the Town is represented by Theodore A. Parisi, Jr., Esq.

On March 11, 2005, the Court denied Appellant's Motion for Summary Judgment on

Question 1 of the Statement of Questions, and asked the parties to file in writing whether

any party would be ordering a transcript (V.R.E.C.P. 5(h)); their agreed or each party's

proposed briefing schedule on the merits; and whether any additional motions were

expected to be filed on the issue of the adequacy of the DRBs decision (a copy of which had just been provided to the Court in the record filed by the Town on March 8, 2005).

With its order, the Court provided the parties with copies of the Supreme Court's decision

in Appeal of Leikert, Docket No. 2004-213 (Vt. Supreme Ct., Nov 10, 2004) (three-

justice panel). As a decision issued by a three-justice panel, that decision has no

precedential effect, but its reasoning is pertinent to this case.

The Court's March 11, 2005 order crossed in the mail with Attorney Meub's March

14, 2005 supplement to his earlier motion for summary judgment to argue both the

inadequacy of the record and also the inadequacy of the DRB's decision when analyzed

with reference to the analysis performed in the Leikert decision. Appellee-Applicants filed

their response on March 24, 2005, stating that they were "foregoing any further filings,

unless directed by the Court," and requesting dismissal of the Appeal. The Town did not

address the argument as to the inadequacy of the DRB's decision.

The DRB decision is wholly inadequate, both under the reasoning in Leikert and in

light of the statutory requirement for a municipal panel to make findings in rendering its

decision. 24 V.S.A. §4464(b)(1); and see former §4470(a).

First, after merely stating the location, zoning district, and ownership of the parcel,

the AFindings of Fact" section of the DRB decision reads in full as follows: The 25 ft. x 22 ft. 4 in. addition would be centered on the existing building; the 25

ft. dimension would be perpendicular to the road and the 22 ft. 4 in. dimension

would run along the ridgeline, thereby eliminating the looming over the vacant lot

cited in the Environmental Court[1] findings.

Nothing in the DRB's findings describes the nonconformity of the existing house or

lot, the design or height of the proposed addition in relation to the existing house, the size

of the existing house, the distance of the addition or the existing house from neighboring

property lines or buildings, or any other relevant facts. No findings at all address the

effect (or absence of effect) of the proposal on the neighboring properties or on traffic in

the vicinity. No photographic evidence appears to have been taken at the DRB hearing

and the DRB made no findings from its members' observations at the site visit.

The DRB decision contains no explanation at all of "how [the] board's decision

was reached based on the evidence submitted." Leikert, slip op. at 2.. The complete

"Conclusions of Law" section of the decision reads in full as follows:

Based upon the above findings, the Development Review Board finds that this

application meets the requirements of the Castleton Zoning Ordinance, Section

400.1.

The record supplied by the Town did not include a copy of the Zoning Ordinance

applicable to this appeal; however, from a copy of the Zoning Ordinance last amended in 1997 (from a closed file) it appears that as of that date §400.1 required approval of an

enlargement or alteration of a nonconforming building to be based on the following three

standards: no adverse effect on traffic in the vicinity; no adverse effect upon surrounding

property; and that the increase represents not more than 50% of the total ground area

covered by the building.

Regardless of whether these or amended standards are found in §400.1 of the

current Zoning Ordinance, the DRB decision gives no explanation of how the evidence

related to the Zoning Ordinance's standards, what findings were made from that evidence

by the DRB, or how the DRB concluded that the standards in the Zoning Ordinance were

met. For this reason, the decision of the DRB must be vacated and the matter

remanded. In its proceedings on remand, it is for the DRB to determine whether it needs

to take additional evidence or hold any additional hearing, or merely to issue a new

decision, with adequate findings and conclusions, based on the evidence in the record.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellant's Motion for Summary Judgment on Question 3 of the Statement of Questions is GRANTED, and the matter is hereby REMANDED to the DRB, concluding this appeal. Any future appeal of any future decision of the DRB in this matter will require a new notice of appeal and will receive a new docket number; the Court will consider any requests for waiver of the filing fee in such appeal at the time that it is made. Please make reference to this docket number in any such motion. Done at Berlin, Vermont, this 25th day of March, 2005.

_________________________________________________ Merideth Wright Environmental Judge

[1] In an earlier appeal that was de novo and not on the record, the Court had heard evidence, taken a site visit, and denied the application for a different addition at issue in that appeal, specifically without prejudice to the applicants' submittal of a revised application to the DRB.