STA= TE OF V= ERMONT

ENVIRONMENTAL COURT

App= eal of Wilkins Properties, LLC = ; = Docket No. 176-10-04 Vtec

Decision and Order on Appellant’s Motion
for Summary Judgment<= /o:p>

A= ppellant Wilkins Properties, LLC appealed from the decision of the Town of Milton Development Review Board (DRB), which denied Appellant’s application= for Final Plat approval for a two lot subdivision of a parcel of land in the “Old Towne Residential/Commercial M5” zoning district. Now pending before this Court is Appellant’s Motion for Summary Judgment. Neither the Town of Milton (Town), nor the other interes= ted parties in this proceeding have filed memoranda in opposition to Appellant’s Motion. No= netheless, for the reasons more specifically expressed below, Appellant’s Motion must be denied.

T= he issues raised by Appellant’s Motion and Statement of Questions can be summarized into two categories. First, as shown by the Statement of Questions, Appellant alleges se= veral procedural defects in the manner in which the DRB addressed Appellant̵= 7;s application, including the manner in which the DRB rendered its decision.<= span style=3D'mso-spacerun:yes'> While some or all of Appellant= 217;s criticisms of the procedure the DRB followed in this case may be true, we = cannot grant summary judgment on this issue, for the following two reasons. First, as noted in more detail be= low, this Court has not received a copy of the DRB decision, so we cannot independen= tly assess its sufficiency. Second, sin= ce this is a de novo appeal, this Cour= t is charged with making its own determination of whether the Appellant’s application is meritorious, and not whether the DRB acted improperly in rendering its decision. Any decision properly appealed to this Court provides it with the responsibili= ty to consider the subdivision application anew. Vermont Rules for Environmental Court Proceedings (V.R.E.C.P.) = 5(g).

A= ppellant next argues that the actions of the DRB were so deficient as to require th= is Court to render the DRB decision meaningless. Appellant follows this argument by suggesting that the proper remedy, once this Court determines that the DRB decision should not be recognized, is to deem Appellant’s applicatio= n as approved, due to the DRB’s alleged failure to render a decision with= in the 45-day period mandated by our Legislature in 24 V.S.A.
§ 4464(b)(1). This we ca= nnot do. Our Supreme Court has ca= utioned that the “deemed approved’ remedy should not be used “be= yond its intended purpose,” which the Court defined as a “remedy [to zoning board] indecision and protracted deliberations.” In re Newton Enterprises, = 167 Vt. 459, 464-65 (1998) (citing In re Fish, 150 Vt. 462, 464 (1988) and Hinsdale v. Village of Essex Junction<= /span>, 153 Vt. 618, 623-24 (1990)).= The Supreme Court went on to caut= ion that the deemed approved remedy should be “strictly construed . . . = to apply only when it clearly implements the statutory purpose.” Newton, 167 Vt. at 465. Since it is undisputed here that = the DRB rendered a decision within 45 days from its hearing, it would not be appropriate for this Court to deem Appellant’s application as approv= ed by operation of law.

T= he main deficiency in Appellant’s argument is that this Court has not been g= iven copies of the filings below, so that it may make its own determination on = the sufficiency of the DRB’s decision.&= nbsp; Given that this is a de nov= o proceeding, the Court would also need to receive copies of the then current Milton Zon= ing Ordinance, Appellant’s application and supporting documentation, including site maps.

While V.R.C.P. 56 does not man= date that parties file affidavits to support their respective positions for or against a pending motion for summary judgment, the initial burden rests squarely with the moving party to convince a trial court that (1) the facts material to the case are not in dispute and (2) the applicable legal prece= dent requires that judgment be entered in their favor. Miller v. Merchants Bank, = 138 Vt. 235, 237-8 (1980). While Appellant’s Motion co= ntains a section captioned “Statement of Material Facts,” Appellant o= ffers no documentation or other foundation for the factual assertions made in its Motion. An affidavit may hav= e been sufficient; certainly the filing with this Court of its application, suppo= rting documents, the Milton Zoning Ordinance and the DRB decision would have all= owed this Court to make an independent determination of whether the Appellant’s factual assertions have merit.

T= he Court is aware that this case has been pending for some eight months or more. It appears from an assertion in Appellant’s Motion that its application may have first been submitte= d to the Town for review more than one year ago. We are also aware that Appellant&= #8217;s Motion was filed with this Court over six months ago, before the undersign= ed was appointed and before this Court went through some significant transfor= mations as of January 31, 2005. We therefore have scheduled a sta= tus conference (see attached Notice of Hearing) so that the Court may determin= e how best to proceed with this case.

According= ly Appellant’s Motion for Summary Judgment is DENIED, with discretion to renew once the fact= ual record is more complete.

Done at Berlin, Vermont, this 13^th day of July, 2005

= ; &= nbsp; &nb= sp; = ; &= nbsp; = &n= bsp; &nbs= p; = &n= bsp; &nbs= p;

= ; &= nbsp; &nb= sp; = ; &= nbsp; Thomas S. Durkin, Environmental Judge

Date ______________ c= opies sent to: &nbs= p; = &n= bsp; &nbs= p; = &n= bsp; &nbs= p; = Clerk’s initials: ________

Attorney Glitman=

Attorney Wilson

Jane M. Lafayette

John Sharrow

John Blatt=

= Stanley Richards

Sandra Richards<= /o:p>

Sharon R. Hazen<= /o:p>

Horace & Ann Clar= k

Ronald L. Stewart

Robert Lemons