44-2-05 Vtec

Rather, Appellants submitted updated information in sup= port of their site plan application at the DRB=3Ds hearing on May 20, 2004. Based on the unsigned minutes of = that hearing, at the hearing the DRB again decided Anot to hear [the] proposal at this time, that way the c= lock will not start,@ and the DRB chairman stated that the ABoard will not accept [the] site plan application at th= is time because as previously voted the Board would not review [it] until [an= ] Act 250 permit was approved.@ On June = 18, 2004, Appellants appealed to this Court from all Adecisions, actions and refusals to act@ taken by the DRB at its May 20, 2004 hearing, that is,= the DRB=3Ds refusal to Aaccept@ or Ahear@ Appellants=3D site plan application. That appeal was assigned Docket No. 110-6-04 Vtec; Questions 3 and = 4 of the Statement of Questions, pertaining to those actions taken by the DRB a= t the May 20, 2004 hearing, remain in the appeal.

On June 29, 2004, the Chairperson of the Town=3Ds Selectboard sent a letter to Appellants stating that = the Selectboard had directed the DRB to proceed with the review of Appellants<= /span>=3D proposed PRD subdivision. The letter informed them that a D= RB meeting would be held on July 15, 2004, at which time Appellants=3D application would be on the agenda.<= /p>

Based on the unsigned and unapproved minutes of the DRB= =3Ds July 15, 2004 hearing, at that hearing Appellants= =3D engineer Apresented a request for Site Plan Review@ for the proposed PRD, presumably including the elements for which = waiver was being requested as a PRD, under ''235 and 245 of the Zoning Bylaws. Later in the meeting, the DRB Areviewed the Zoning Bylaws and compiled a tent[at]ive l= ist of additional information needed to consider the Harrison request.<= span style=3D'font-family:"WP TypographicSymbols";mso-bidi-font-family:Shruti; mso-char-type:symbol;mso-symbol-font-family:"WP TypographicSymbols"'>@ The DRB scheduled a Aspecial meeting@ for July 29, 2004 at 7:00 p.m. at the Berkshire Town Office, Ato conclude the list of additional information needed to consider the Harrison request,@ and also scheduled its next regular meeting for August= 19, 2004.

If the July 29, 2004 special meeting took place, or was further recessed to August 19, 2004, no minutes of it have been provided t= o the Court. However, it appears t= hat Appellants=3D engineer must have been informed of the additional information requested by the DRB at some time before the August 19, 2004 regular meeting, as at that meeting he attended, presented Aupdated drawings@ and a Asoil evaluation,@ and gave Adetailed answers@ to a list of questions prepared by the Chairman of the= DRB, who was not present at the August 19 hearing. Based on the unsigned minutes of = that hearing, six individuals: Kimberly Ransom, Harold Greenia, Ronald Wonot, Jacqueline Greenia, Lorraine Conlon and Patrick Heaghney, referred to as interested parties and as neighboring landowners, were also provided the opportunity ask questions regarding the proposal.

At the close of the August 19, 2004 meeting, the three members of the DRB who were present voted Anot to accept the application . . . at this time becaus= e the Chairman was not present and he had made all the legal contacts concerning= the application.@ The DRB = then voted to Arecess the meetingA until September 2, 2004. However, if a September 2, = 2004 meeting took place, or was further recessed to September 16, 2004, no minu= tes of it have been provided to the Court.

= On September 16, 2004, the DRB held another hearing. Based on the unsigned and unapproved minutes of the September 16, 2004 hearing, Appellants=3D engineer requested that Atonight=3Ds meeting be considered informal pending the September = 27th, 2004 environmental court date, [as Appellants] do not want the information discussed tonight to prejudice the case.@ The minu= tes state that Appellants=3D engineer Asubmitted revised copies of the [site] plan and informational sheets to be reviewed,@ that Adiscussion was held about the revisions,@ and that Appellants=3D engineer Awould be back for the October 21st, 2004 meeting depend= ing on the outcome of the September 27th, 2004 court@ hearing. The DRB voted to adjourn the meeting, without reference to another date.<= /o:p>

This Court held pretrial conferences regarding the then-pending appeal (Docket No. 110-6-04 Vtec) on September 27 and 28, 200= 4, at which the parties agreed that the Court&n= bsp; would place the appeal on inactive status until the DRB would have reached a decision on the merits of Appellants=3D site plan application, preserving whatever deemed-appr= oval or other arguments Appellants had as of that date in that appeal.

DRB hearings on the merits of Appellants=3D site plan and PRD subdivision application were held on October 28, 2004, November 18, 2004, and December 16, 2004, as referred to= in the January 27, 2005 DRB decision. That decision states that the DRB Aelected to review the application on October 28, 2004,<= /span>@ and again that it Avoted unanimously to accept the Site Plan for review on October 28, 2004.@

Based on the unsigned and unapproved minutes of the Dec= ember 16, 2004 hearing, it was at that hearing that the DRB voted to deny Appell= ants=3D application on its merits, on the basis of its failure= to Ameet the minimum road frontage.@ The writ= ten decision was issued on January 27, 2005; its appeal to this Court was assi= gned Docket No. 44-2-05 Vtec.

Completeness and deemed-approval issues in Docket No. 110-6-04 Vtec

In the decision appealed in Docket No. 110-6-04 Vtec, t= he DRB initially refused to accept Applicants=3D applications for site plan approval, apparently on the grounds that the applications did not include an issued Act 250 permit. (We will assume, for the purposes= of this discussion, that this project does require Act 250 approval, as this = issue would be moot if it does not.)

The final step in approval of any project is a zoning p= ermit issued by the Zoning Administrator. Section 215(b)(1) of the Zoning Bylaws provides that no zoning perm= it shall be issued unless and until the listed other permits and approvals ha= ve been issued, if those other permits and approvals are required for the project. Section 215(b)(1) specifically lists Asite plan approval, if applicable,@ '215(b)(1)(B), as one prerequisite to issuance of a zoni= ng permit, and also lists Aall applicable state permits,@ '215(b)(1)(E), as another prerequisite to issuance of a zoning permit. Thus the Zoni= ng Administrator would not be authorized to issue a zoning permit until a pro= ject=3Ds Act 250 permit was in place and until the project had received site plan approval from the DRB.

However, nothing in '215(b)(1) requires an applicant to obtain the various o= ther permits and approvals required for a project in any particular order, prio= r to applying for the zoning permit. Section 215(b)(1) does require that an Act 250 permit be obtained f= or the project prior to issuance of a zoning permit by the Zoning Administrat= or, but it does not require that the Act 250 permit be obtained prior to site = plan approval (or prior to approval of the project as a PRD subdivision). =

By contrast, nothing in '235 refers to any required state permits as a prerequis= ite to the DRB=3Ds consideration of site plan approval. Unlike the prerequisites to zoning permit approval in '215(b)(1)(E), '235 only requires information pertaining to site plan i= ssues to be included in the application for site plan approval, '235(c)(1) (as well as requiring submittal of the site p= lan drawings required by '235(c)(2)). The requirement in '235(c)(1)(F) that the site plan application=3Ds written statement include Aevidence of receipt of all necessary reviews, approvals= , and permits@ therefore must refer only to the reviews and approvals necessary for site plan approval (including subdivision and PRD approval conducted through site plan approval), such as the municipal or state appr= oval of septic systems required by '240(a)(3). As nothing in ''235, 240 or 245 requires prior Act 250 approval in orde= r to obtain site plan approval, t= he DRB should not have refused to consider the site plan application on the sole = basis that the project had not yet obtained its Act 250 permit.

= However, under the specific language in '235(f) of the Zoning Bylaws, Appellants were not then entitled to deemed approval as to the application submitted at the May 200= 4 DRB hearing. That section requir= es that, within sixty days of Areceiving a complete site plan application@ the DRB shall Aissue a written statement on the application;@ it also provides that failure Ato render a decision@ shall be deemed approval of the application. &= nbsp; A= nalyzed under '235(f), the DRB did not consider the May 20, 2004 site = plan application to be complete until, at the earliest, the August 19, 2004 meeting, as the DRB required more information (for reasons other than the Act 250 permit) through July 15, 2= 004, which Appellants provided at the August 19, 2004 hearing. As of September 28, 2004, the par= ties agreed to stop the clock. As= of that date, the DRB had used 40 days, and therefore deemed approval did not occur. When the clock starte= d again on October 28, 2004, that date was treated by the DRB as the date of accep= tance of a newly-revised application. The deemed-approval arguments regarding the application accepted for review on October 28, 2004, are discussed below under Docket No. 44-2-05 Vtec.<= /o:p>

The DRB=3Ds failure to consider the merits of the May 20, 2004 application would have required us to remand this matter to the DRB for it= to consider that application on its merits or to rule on its lack of complete= ness on other grounds. However, a= s the DRB proceeded in June of 2004 to consider the application on its merits wi= thout regard to the Act 250 permit issue, a remand is unnecessary.

Deemed-approval issues in Docket No. 44-2-05 Vtec