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STATE OF
ENVIRONMENTAL COURT
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Appeal of Hart
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span
style=3D'font-size:12.0pt;font-family:"Palatino Linotype";mso-bidi-font-fa=
mily:
"Times New Roman"'>Decision and Order on Cross Motions for Summary Judgmen=
t
=
James T=
yler Hart
(Appellant) appealed from a decision of the Town of
=
The
following facts are undisputed unless otherwise noted:
1. =
;
On
2. =
;
There are two p=
onds
in the area of the proposed PRD, both of which are on lands owned by at the time of the application. The “lower pond” is l=
ocated
within the proposed PRD on proposed
3. =
;
On
4. =
;
On June 17, 200=
3, submitted revised plans for the subdi=
vision,
again proposing a three-lot PRD with Lot 1 being 10.1 acres, Lot 2 being 2=
8.7
acres, Lot 3 being 2.7 acres.
5. =
;
On July 15, 200=
3,
Huntington Fire Chief Tate Jeffrey submitted a letter to the Commission, s=
tating
that “it would be appreciated if Mr. Hart would authorize the depart=
ment
to install, at our cost, a dry hydrant in [the upper pond] if we choose to=
do
so,” and recommending that “if the department doesn’t in=
stall
a hydrant prior to the issuance of either building permit for the two new =
lots,
that the installation of a dry hydrant, by the owner/builder, be a stipula=
tion
of the first permit.”
6. =
;
Also on =
7. =
;
On the evening =
of
8. =
;
On
9. =
;
No appeal was t=
aken
from the
11. =
;
On
12. =
;
On
13.=
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On
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Mr.
Hart is appealing from the Commission’s
=
The
Town characterizes Hart’s appeal as “an untimely collateral at=
tack
on a condition imposed on
=
The
Town’s position is understandable, given the inartful drafting of the
sole question in Appellant’s Statement of Questions: “Whether =
the
Town of Huntington can condition Appellant’s subdivision approval on
construction of a dry fire hydrant for fire protection in the general vici=
nity
of Appellant’s land but which provides no benefit to his property.&#=
8221; This question appears on its face=
to be
a challenge to the authority of the Commission to impose Condition # 7 in =
its
Given that the iss=
ue is
now before this Court in a de novo=
appeal,
we must now determine how to respond to Appellant’s request that Con=
dition
7 be revised or deleted. In =
doing
so, we must first determine whether the condition should be regarded as a
“final decision,” the review of which may be limited by 24 V.S=
.A.
§ 4472, as the Town now suggests.
=
The
circumstances here lead us to conclude that we cannot consider Condition #=
7
to be a final condition. Ind=
eed, it
appears that the Commission did not consider it to be a final condition, a=
s the
undisputed evidence shows that the Commission continued to have doubts
regarding the condition well past its
the language of Condition # 7 was
undoubtedly well intentioned in its suggestion that the Applicant resolve =
the
fire protection issue with the Fire Chief, but it does not contain a speci=
fic
action to be taken to comply with the Commission’s 2003 approval.
September 15, 2004 The merits of that request are the
proper subject of an appeal to this Court.
=
The
facts appear in dispute on the question of what steps are appropriate to
address the fire protection issues relevant to Appellant’s project.<=
span
style=3D'mso-spacerun:yes'> This Court will therefore decide,=
at the
scheduled de novo merits hearing, whether Condition # 7 should be amended =
in
light of the inability of the parties to come to a resolution regarding fi=
re
protection at the site of the proposed PRD. The parties should be prepared to
present evidence concerning the need for fire protection in connection wit=
h the
proposed PRD and surrounding neighborhood, the location of and payment for=
such
fire protection, and the effect, if any, of Appellant’s sale of the =
upper
pond and surrounding land. <=
span
style=3D'mso-spacerun:yes'>
=
Accordingly,
based on the foregoing, it is hereby ORDERED and ADJUDGED that both Appell=
ant’s
and the Town’s motions for summary judgment are DENIED. This matter will go forward as sch=
eduled
for a site visit and merits hearing, commencing at
10:00 AM
=
;
_________________________________
Thomas S. Durki=
n,
Environmental Judge
[1] The application form used is for a subdivision, but the cover letter says the
application is for a PRD—see Attach. A to the Town’s Statement=
of
Undisp. Material Facts.
[3] Further, to the extent Appellant = intends his sole Question to be read more broadly, as a general challenge to the Town’s general authority to impose a condition that requires an appl= icant to address a fire protection issue, this Court would be inclined to deny Applicant’s appeal. We= choose not to do so here, as Appellant-Applicant makes clear in his Memorandum fi= ling of November 21, 2005 that his Question should be read as a more narrow challenge to the Planning Commission’s decision of September 15, 200= 4, to not grant his request to consider alternatives to its prior directive that Appellant submit “a letter of resolution” from Chief Jeffrey, = given that no resolution had been reached.