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ENVIRONMENTAL
COURT
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Appe=
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Docket
Nos. 118-7-03 Vtec and 24-2-03 Vtec
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sp; Decision
and Order on Post-Decision Motions
In its Decision and Order on the merits of the
above-captioned appeals, the Court provided for Appellant-Applicant to sub=
mit a
proposed judgment order with revised site plans and detail sheets consiste=
nt
with the decision, approved as to form by the other parties. The parties did not agree on the
proposed judgment order. The
parties also each moved for reconsideration of the decision, or to alter or
amend it in several respects.
The project proposal as appealed in Docket No. 118-7-03=
Vtec
superseded that proposed in Docket No. 24-2-03 Vtec, and the two appeals w=
ere
consolidated. As described i=
n the
Decision and Order on the merits of the application issued on April 4, 200=
5,
Questions 1 and 2 of the original Docket 24-2-03 Vtec were not presented o=
n the
merits and were not addressed in the decision. The April 4, 2005 decision includ=
ed
consideration of three changes to the application submitted as a stipulati=
on on
March 9, 2005, by Appellee-Applicants and the Village, to conform with rel=
ated
conditions imposed by the Environmental Board=3D
[a]s all three changes to the application address factu=
al
concerns raised at trial, and could equally have been imposed by this Cour=
t as
conditions in the present appeals, they are not beyond the scope of this
proceeding and will be considered in connection with the analysis of the
municipal requirements for site plan approval.
Appellants are represented by Stephanie J. Kaplan, Esq.;
Appellee-Applicants William and Maryjean Kalanges are represented by Vince=
nt A.
Paradis, Esq.; the Village of Essex Junction is represented by David A. Ba=
rra,
Esq.
The decision on the merits granted site plan approval of
Appellee-Applicant=3Ds proposal for a development of seven single-family hou=
ses
off Hubbell=3Ds Falls Drive and Beech Street, specifically
For the topics on which evidence was presented to the C=
ourt
and on which it made findings, the related conditions simply required
Appellee-Applicant to memorialize in graphic form the requirements imposed=
by
the court (such as the change in position of the barrier or the reduction =
in
width of the curb cut), because otherwise there would be no site plan in t=
he
Planning Commission files showing the project as approved. On the other hand, for topics on =
which
the Court agreed with Appellants that the application lacked required info=
rmation,
such information must be submitted to and approved by the Planning Commiss=
ion
as it was not submitted before and therefore was not within the scope of t=
he de
novo proceeding.
Perhaps it would have been better organization to separ=
ate
the two categories of conditions rather than to leave the conditions in the
order in which the topics had been discussed in the body of the decision.<=
span
style=3D'mso-spacerun:yes'> The Court=3D
Thus, conditions 1, 3, 4, 6, 8 and 9 carried forward in=
to
the conditions those items that still required approval by the Planning
Commission; Appellee-Applicant must make those submissions to the Planning
Commission. It would be prem=
ature
for the Court to make any determination regarding the adequacy of those pl=
ans
or to determine whether they can be submitted to the Planning Commission a=
s a
minor or major amendment, as stated in the footnote to the decision discus=
sed
above. Notes must be added t=
o the
sheets of the site plans showing those proposed amendments to reflect that
these items must obtain Planning Commission approval as provided in the Co=
urt=3Ds decision and order.
Condition 7 carried forward into the conditions an item=
that
required approval by the governing body of the Village; Appellee-Applicant=
has
obtained that approval.
Conditions 2 and 5 carried forward into the conditions =
those
items that simply needed an update on the graphic plans of those features =
about
which there was evidence but which had been missing from the graphic plans
(Condition 2) or had been revised by the Court in its decision (Condition
5). Appellee-Applicant has m=
ade
those changes on the site plans.
Condition 10 was a self-executing condition not at issu=
e in
these motions.
Appellants=3D Motion to Alter
Appellants argue that the Court should have denied the
application rather than granting it with the imposed conditions, arguing t=
he
evidence was not presented to support the proposed conditions. Unlike the conditional use approv=
al not
warned and therefore improperly considered in In re Torres, 154 Vt.=
233,
236 (1990), in the present case the matter was warned for site plan review=
and
evidence was presented from which the Court derived each of the contested
conditions (not already dealt with above), as follows:
Beech Street
Width of curb cut - The zoning ordinance itself provides for the reduced
width. Moreover, ample evide=
nce was
presented from expert witnesses as well as lay witnesses as to the potenti=
al
for conflict within the proposed wider curb cut.
Height and type of fence - The or=
iginal
proposal was for a four-foot high picket fence, changed by Appellee-Applic=
ants
from an earlier proposal for a guard rail.
Both the height and the type of fence, if any, were at issue in the
proceedings. Ample evidence =
was
presented from expert witnesses as well as lay witnesses as to the adequac=
y of
the proposed height of the fence (to keep children from climbing on and ov=
er it
) and the proposed material of the fence (to improve visibility by pedestr=
ians
and drivers of each other as they approached the curb cut) to allow the Co=
urt
to require a six-foot-high chain-link fence.
Appellants also request reconsideration of the hours of
construction, and clarification of whether the holidays referred to include
both the State and Federal holidays.
Appellee-Applicants do not oppose the inclusion of both the State a=
nd
Federal holidays, and it is so ordered.&n=
bsp;
As to the hours of construction: the hours of 7 a.m. to 6 p.m. on M=
onday
through Friday and the hours of 8 a.m. to 5 p.m. on Saturdays will be reasonable during the period of construction,
but only if those hours are
strictly observed. That is, =
no
equipment or workers=3D vehicles may arrive at the construction site any
earlier than the starting times, or may leave the construction site=
any
later than the ending times.
Compliance with the hours of construction will therefore require
stopping work in the afternoon early enough so that the workers leave and =
the
site is quiet no later than the required times.
The proceeding before the Court was de novo on
issues raised by Appellants. If the
Planning Commission decision contained a condition that was not brought fo=
rward
in evidence in this litigation, the Court cannot impose it at this point i=
n the
proceedings. Appellants also reques=
t a
condition that any violation of the management documents of the project
constitutes a violation of this approval.=
Such a condition would go beyond the scope of this proceeding, as m=
any
elements of the management documents may be unrelated to the regulatory issue=
s. The conditions imposed by the Cou=
rt
apply to the property, not merely to the developers, so that any owner or
resident with an interest in the property must comply. The conditions will be sufficient=
ly
enforceable by interested persons through 24 V.S.A. 4470(b) without involv=
ing
the management documents.
Appellee-Applicants=3D Motion to Amend or Motion for Relief from Order=
Appellee-Applicants move to amend or correct the Court<=
/span>=3Ds April 4, 2005 Decision and Order to remove references
characterizing the project as representing condominium ownership or requir=
ing
subdivision or PRD approval.
The request to change references to condominium ownersh=
ip is
granted; the first and second paragraphs on page 9 of the decision will be
amended as shown in bold, as follows:
. . . . T=
he Land
Development Code provides not only for conventional developments of single
houses each on its own lot, but also for other types of ownership such as
condominium or other common interest ownership. A development of multiple house s=
ites on
a single parcel, intended for development as a land condominium, is treate=
d as
a subdivision under '503 regardless of whether the lots are to be divided and
owned in fee, or whether the house sites are to be held in condominium<=
/s> common
interest ownership as in the present proposal, . . .=
Because it is proposed as comm=
on
interest land condominium ownership, rather than as
conventionally-owned lots, . . .
Appellee-Applicants also request that the Court delete
references to the project=3Ds qualifying as a PRD or requiring subdivision approval,
noting that the Village did not require any review other than the site plan
review before the Court in this appeal.&n=
bsp;
That request is denied, although the Court recognizes that some of =
the
explanatory text may be d=
icta
in the present appeal, because it contains the Court=3Ds rationale addressing Appellants=3D Question 3 regarding multiple houses on a single lot a=
nd
because it contains the authority for Appellee-Applicants=3D requested waivers.
Judge Wright will be unavailable to sign a restated jud=
gment
order after the morning of September 9 through September 29. Accordingly, the parties may file=
a
restated judgment order and annotated site plan sheets, incorporating the clarifications =
found
in this order, for Judge Wright=3Ds signature, so that it is filed at the Court before 4:=
30 on
Thursday, September 8, 2005. In the
alternative they may file an agreed judgment order later than that date for
Judge Durkin=3Ds signature.
Dated at Berlin, Vermont, this 2nd day of
September, 2005.
______________________________________
Merideth Wright
Environmental Judge
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