Appeals of Madden (Decision and Order on Pending Motions

Appeals of Madden

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Docket Nos:

36-3-04 Vtec (from 2/5/04 Planning Comm. decision)

105-6-04 Vtec (from 4/27/04 ZBA decision)

119-7-04 Vtec (from 6/3/04 Planning Comm. decision)

Appellant John A.G. Madden appealed from several decisions of the Zoning Board of Adjustment (ZBA) and the Planning Commission of the Town of New Haven, as listed above. Appellant represents himself; Appellee-Applicant State of Vermont (applying for approval of the building and site plan) is represented by William H. Rice, Esq. and Stacy A. Butler Esq.; Appellee-Applicants Peter Norris, Jr. and Peter Norris, Sr. (applying for the subdivision amendment) are represented by Donald R. Powers, Esq.; and the Town is represented by James H. Ouimette, Esq. As necessary to understand the pending motions, we have repeated some explanatory material from the Court's July 14, 2004 ruling.

The appeals filed from each of the different decisions by the Planning Commission and ZBA are each separate appeals, with separate docket numbers. The parties and the Court have agreed to consolidate them for pretrial discussion and hearing, but they remain separate appeals; we request that the parties take care to use the appropriate docket number or numbers to avoid perpetuating confusion.

Docket No. 36-3-04 Vtec is the appeal from a February 5, 2004 Planning Commission decision regarding the subdivision, apparently only contained in meeting minutes and not in any separate written decision. This was apparently an application by Appellees Norris for changes to the previously-approved subdivision plans, involving changes to the frontage road, curb cut and right-of-way. One of the grounds for appeal stated by Appellant regarding this decision challenges the notice given of this meeting. It appears from the minutes of the June 3, 2004 Planning Commission meeting at which it ratified or readopted its February 5, 2004 decision that the Planning Commission conceded that the February 5, 2004 meeting was not properly warned. It therefore appears to the Court that Docket No. 36-3-04 Vtec should be concluded in Appellant's favor on that issue, leaving any issues regarding the merits of the subdivision amendment to be heard in Docket No. 119-7-04 Vtec, along with the merits of the site plan approval.

Accordingly, any party opposing the following entry in Docket No. 36-3-04 Vtec may file such opposition in writing so that it is received at the Court on or before August 9, 2004; otherwise, effective August 11, 2004, summary judgment will be granted in Appellant's favor on Question 1 of the Statement of Questions in Docket No. 36-3-04, and Docket No. 36-3-04 Vtec will thereafter be concluded as otherwise moot, specifically without prejudice to all parties" ability to raise in Docket No. 119-7-04 any issues on the merits of the subdivision amendment that they could have raised in Docket No. 36-3-04 Vtec.

Docket No. 105-6-04 Vtec is the appeal from an April 27, 2004 ZBA decision to approve the state police project. In this appeal, the State is the principal Appellee-Applicant, although the landowners (Norris) also signed the application. A legal issue that must be resolved in this appeal is what is the scope of the municipality's authority with respect to state-owned projects. Although this has been referred to as a conditional use approval decision, the Court understands that it is at least the State's position that this was an application filed under and ruled under the limitations of 24 V.S.A. § 4409, now 24 V.S.A. § 4413. See In re Appeal of Department of Buildings and General Services, 2003 VT 92 (October 10, 2003). Ordinarily, summary judgment might be the appropriate next step to determine the elements of the State's applications that are within the scope of municipal authority under present law.

Docket No. 119-7-04 Vtec is the appeal from a June 3, 2004 Planning Commission decision in which the Commission took two separate actions with respect to this property. Its action to " reaffirm" its February 5, 2004 decision on the changes to the subdivision with respect to the frontage road, the curb cut and the right-of-way, apparently because the February hearing had not been properly warned, appears to be ripe for hearing on the merits of the subdivision amendment. As to the Planning Commission's action to approve the site plan for the state police building, this ruling also implicates the issue of the scope of the municipality's authority with respect to state-owned projects. Ordinarily, summary judgment might be the appropriate next step to determine the elements of the State's applications that are within the scope of municipal authority under present law.

Mr. Madden filed with the Court a copy of a document entitled " A Settlement Proposal" addressed to Attorney Rice, suggesting an alternative location for the state police facility. We must alert the parties to several issues regarding this filing. First of all, while a litigant must send the other litigants copies of everything sent to the Court, it is not necessary for the Court to be sent copies of all communications between the litigants. Further, in order to encourage full and free settlement discussions between the parties, the rules of evidence prohibit any evidence of such discussions or proposals from being admitted in evidence in the litigation. Moreover, although the New Haven Zoning and Subdivision ordinance has not yet been filed in this case, we note that most zoning and subdivision ordinances do not provide a site selection mechanism for evaluating alternate sites for a proposed project. Rather, the Court must evaluate a particular project as proposed for a particular site, to determine whether it meets or fails to meet the ordinance standards for that proposal at that location.

The State has filed a " Motion for Permission to Proceed with Construction," which appears to ask for an advisory opinion " verifying that the permits issued to the State by the Town of New Haven are in full force and effect." Courts cannot issue advisory opinions. Parties must proceed at their own risk under their own interpretations unless an issue has been properly raised to the court in litigation.

The appeals now before the court do not include any appeal from any issuance of a zoning permit by the zoning administrative officer. If such a permit has been issued and if an appeal has been taken to the ZBA, it has not yet been ruled on by the ZBA nor appealed to this court, and therefore we do not have jurisdiction of issues to do with any zoning permit. We note for the parties" reference that, under the statute as amended effective July 1, 2004, 24 V.S.A. § 4449(a)(3) has replaced former § 4443(a)(3). Both the former and the current section only refer to the suspension or the taking effect of " zoning permits," that is, the permit issued by the zoning administrative officer under subsection (a)(1) after all the other approvals (such as site plan approval or conditional use approval) have been obtained. See Appeal of Irons, Docket No. 94-6-04 Vtec (Vt. Envtl. Ct, July 6, 2004).

As to the ZBA's action on the project under the conditional use standards as modified by 24 V.S.A. § 4413, or as to the Planning Commission's action on the site plan of the project,

both of those actions are on appeal to the Court, de novo, and the decisions could be changed, conditioned or denied in the merits proceedings in these appeals. In these appeals, the Court will have to determine whether the applications are in compliance with the zoning and subdivision regulations and the Town Plan (to the extent it is implemented or made enforceable in the regulations), as raised by Question 3 of the Statement of Questions.

As discussed on the record at the July 16, 2004 conference, Appellant intended this motion to be not only a request to appeal Judge Burgess" June 18, 2004, denial of the second motion to reconsider the referred recusal motion, but also is a request to take a collateral final order appeal of Judge Wright's ruling on the recusal request.

As stated in the July 14, 2004 entry order, although I would not in the least oppose having another judge assigned to hear these matters if they therefore could be heard faster than I am able to hear them, I could not then and cannot now in good conscience find any reason to recuse myself, and wish to reiterate that I can find within myself no personal bias or prejudice with respect to Mr. Madden. I therefore referred the recusal request without ruling to the Administrative Judge, as required by V.R.C.P. 40. While separate from the merits of the case, no amount of appeal of that referral decision would present the merits of the recusal decision to the Vermont Supreme Court. Rather, the recusal decision is before the Vermont Supreme Court, if at all, by appeal of Judge Burgess" rulings. Under V.R.A.P. 5.1, Appellant's request for permission to take a collateral final order appeal of Judge Wright's referral decision is hereby DENIED.

Since the time of the last referral ruling Mr. Madden has filed a complaint with the Judicial Conduct Board (JCB). Regardless of the content of the complaint, until that complaint has been evaluated by the JCB's intake procedures, I believe that it is the best practice for a judge to suspend making substantive pretrial rulings and any evidentiary hearings on the merits of the case, and I therefore will do so in these appeals, commencing as of the issuance of this decision. If any motions need to be ruled on during that period, especially Appellant's motion for stay of construction or any motions for expedited scheduling of the merits of any of these appeals, the Administrative Judge may wish to assign those motions temporarily to another judge. If the JCB determines to proceed with the complaint, I will at that time request the assignment of another judge to these cases. If the JCB declines to pursue the complaint, I will resume the pretrial management and merits hearing on these cases.

The State has moved for "expedited scheduling" of the merits hearing on these appeals, to be scheduled " as early as practicable," due to the increased costs the project would incur if the construction of the building had to continue into the winter months or had to be postponed past the end of the current lease on the facility this project would replace. Other than the fact that these costs would be borne by the public rather than by a private developer, nothing about these increased costs appears to differ from the situation of a private developer whose municipal permits have been appealed. It does not appear from the file whether at least the potential for appeals of the municipal panel decisions was built into the planning for the present project. Appellant has moved for a stay; that motion appears to relate to the state building cases more than to the subdivision amendment case.

At the present time, the earliest dates not already scheduled for hearings in Judge Wright's schedule are September 3 or September 13, 2004. It is also possible that a hearing already postponed once and now scheduled for August 17, 2004 could again be postponed to allow one day of hearing for this matter. However, while it appears likely that the subdivision amendment case could be heard by itself in a one-day or even a part-day hearing, it also appears likely that the zoning and site plan applications for the state building would take longer than the remaining half day, especially if issues as to the scope of what is allowed to be regulated by the Town are not resolved by summary judgment in advance of the hearing.

We must also note that other cases filed in Environmental Court in June or July are now receiving hearing dates in October, November and December. The Court has a backlog of already-heard cases awaiting the writing of decisions, which also must be accommodated in the Court's schedule. Given the hearings already scheduled and need for writing already scheduled, if I were proceeding with the case I would then examine whether other applicants already before the Court should be further delayed so that these particular appeals could be expedited. However, because we do not at the present time know how long it will take the JCB to make a determination on whether to proceed with a complaint in this matter, the parties are free to request that the State's motion for an expedited hearing and Appellant's motion to stay construction, if not the hearings on the merits of these matters, be assigned to another judge in the interim.