Goddard College CU

Vermont Superior Court·Decided April 30, 2013·No. 175-12-11 Vtec·Published

Opinion

STATE OF VERMONT SUPERIOR COURT — ENVIRONMENTAL DIVISION

{ In re Goddard College Conditional Use { Docket No. 175-12-11 Vtec {

Decision on Motion to Amend Statement of Questions, Motion for Summary Judgment, and Motion for Declaratory Ruling

Rhea Wilson (Appellant) appeals a decision by the Town of Plainfield Development Review Board (the DRB) finding that all of the criteria for site plan approval were met and granting a conditional use permit to Goddard College (Applicant) to construct a central wood chip heating system and a building to house the system on property that Applicant owns in the Town of Plainfield, Vermont (the Town). On October 4, 2012, Appellant moved to amend her Statement of Questions. Applicant responded by opposing Appellant’s motion and by filing motions for summary judgment and for a declaratory ruling on the classification of the proposed project under the Plainfield Zoning Regulations, adopted March 1, 2011 (PZR). Appellant and the Town opposed Applicant’s two motions, and Appellant also restated her amended Statement of Questions at the Court’s request. We address all three pending motions in this decision. In this matter, Appellant is represented by Erick E. Titrud, Esq. Applicant is represented by Brian S. Dunkiel, Esq. and Elizabeth H. Catlin, Esq. The Town is represented by Robert Halpert, Esq.

Factual Background For the sole purpose of putting the pending motion into context, the Court recites the following facts, which it understands to be undisputed unless otherwise noted: 1. Applicant Goddard College is a private educational institution approved by the Vermont Department of Education. 2. Applicant’s campus is located on a single lot of land, approximately 117 acres in size, within the Town’s Rural Residential District. 3. Applicant proposes to construct a woodchip heating system, primarily housed in a new standalone building, to provide heat and hot water to the existing campus buildings. The heating system will not provide heat or hot water to any other person, facility, or business.

1 4. As proposed, the woodchip boiler building will occupy approximately 2,500 square feet. Applicant’s plans show no outdoor storage areas associated with the proposed building. 5. The proposed building will only house the woodchip heating system, including the woodchip storage bins; it will not be used for classrooms, office space, storage space, or any other college uses. 6. The woodchip heating system will burn wood chips to heat water that will be circulated to other buildings on campus. 7. Applicant proposes that the woodchip boiler building will accept deliveries of wood chips by large truck roughly once per week during colder seasons, with up to two deliveries per week during the coldest periods and less frequent deliveries during the summer. In total, Applicant expects the heating system to require roughly 36 tractor-trailer trips per year to supply wood chips. 8. The proposed woodchip boiler building and heating system will not require any new employees. 9. Applicant filed its zoning permit application for the proposed heating system with the Town’s zoning administrator (ZA), who determined, with Applicant’s consultant, that the project was classified as a commercial use requiring site plan approval and a light industry use requiring a conditional use permit. 10. Applicant did not appeal or otherwise challenge the ZA’s classification. 11. The DRB conducted site plan review and conditional use review of the proposed project. The Applicant did not claim at the DRB proceedings that the proposed heating system was properly characterized as an “Accessory use or structure” under the PZR. 12. Upon the DRB’s final decision approving the project under both commercial site plan review and conditional use review, Applicant did not file a request for reconsideration with the DRB. Applicant also did not file an appeal or cross-appeal of the DRB’s final decision or its review process with this Court.

Discussion Currently before the Court are Applicant’s motions for summary judgment and for a declaratory ruling and Appellant’s motion to amend her Statement of Questions. Our first concern in adjudicating the pending motions is to establish which of Appellant’s questions are under review. Appellant filed an initial Statement of Questions with this Court on December

2 28, 2011. She filed a motion to amend her Statement of Questions on October 4, 2012. At the Court’s urging, Appellant restated her proposed amended questions and filed a revised motion to amend her Statement of Questions on March 1, 2013. This revised motion offers nine questions for this Court’s review. Applicant opposes Appellant’s revised motion to amend her Statement of Questions. Applicant requests, however, that this Court apply the reasoning in its October 18, 2012 motion for summary judgment to Appellant’s nine most recently proposed questions. See (Goddard College’s Opp’n to Appellant’s Am. & Restated Statement of Questions at 1, filed Mar. 4, 2013.) Only if we decline to grant summary judgment on Appellant’s proposed questions does Applicant seek to oppose the admission of those questions on other grounds. See (Applicant’s Mot. for Summ. J., Mot. for Declaratory Ruling, & Opp’n to Appellant’s Mot. to Amend Statement of Questions at 1, filed Oct. 18, 2012.) Because Appellant’s amended questions raise legal issues that are appropriately addressed by summary judgment, we adopt Applicant’s suggested procedural approach to the pending motions. That is, we will first consider Applicant’s motion for summary judgment on the nine questions posed in Appellant’s March 1, 2013 Amended and Restated Statement of Questions. We may only grant summary judgment when a moving party (here, Applicant) has shown that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). We must “accept as true the [factual] allegations made in opposition to the motion for summary judgment” and give the non-moving party (here, Appellant) the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356; see V.R.C.P. 56(c). However, both the party claiming that a material fact is undisputed and the party seeking to establish a dispute of material fact must support their factual assertions with citations to admissible evidence. V.R.C.P. 56(c)(1). See Reporter’s Notes—2012 Amendment, V.R.C.P. 56 (“Rules 56(c)(1)(B) and (c)(2) clarify that all asserted facts must be based on admissible evidence.”). I. Classification of the Project The primary issue raised by all three of the pending motions is how Applicant’s proposed woodchip heating system should be classified under the PZR. The DRB’s decision below reviewed Applicant’s project as a commercial use requiring commercial site plan review under PZR § 2.6 and as a light industry use requiring conditional use review pursuant to PZR

3 § 2.8. The DRB did not consider whether Applicant’s proposed development should be reviewed as anything other than a commercial and light industry use. Nevertheless, Applicant now contends that its project should be classified and reviewed as an “Accessory use” under PZR § 1.7, which is a permitted use in the Rural Residential District. PZR § 4.3. Applicant has moved for this Court to issue a declaratory ruling that its project is an accessory use. Appellant and the Town contend that Applicant’s project should undergo both commercial site plan review as a commercial use and conditional use review as a light industry use. In contrast to Appellant, the Town takes no position on the merits of Applicant’s proposed project.

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