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. 1 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
1 Referred to incorrectly in some of the exhibits and memoranda as 422 Mount Independence Road. 2 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
2 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). 3 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
3 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. 4 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 5 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 6 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 7 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 8 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.
9 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 10 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