STATE OF VERMONT=

ENVIRONMENTAL COU= RT

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In re Appeal of W= ilkins Properties, LLC = ; } Docket No. 176-10= -04 Vtec

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<= span style=3D'font-size:12.0pt;font-family:"Times New Roman"'>Decision on Pendi= ng Motion for Summary Judgment

Appellant-Applicant Wilkins Properties, LLC (Appellant) appealed from the decision of the Town= of Milton (Town) Development Review Board (DRB), which denied Appellant’= ;s two applications: the first for = final plan approval for a two-lot subdivision of a parcel of land in the “Old T= owne Residential/Commercial M5” (M5) zoning district. The second application was for si= te plan approval for the intended uses on each of the two proposed lots.[1] In a decision dated July 13, 2005, this Court denied Appellant’s motion for summary judgment, with discretion to renew, on the grounds that insufficient factual evidence had= been provided to the Court. This = Court also noted in its July 13^th decision that Appellant’s allegations concerning certain procedural defects in the DRB decisional pr= ocess were not relevant to this de novo appeal.

This Court, in an entry order = dated August 4, 2005, provided a timeline within which Appellant could file a renewed motion for summary judgment, adding that any such motion “shall be accompanied by true copies of the Town of Milton zoning regulations, the Appellant’s application, and the DRB decision which was the basis of this appeal.” Now pending b= efore this Court is Appellant’s renewed motion for summary judgment, which includes the Appellant’s application, the DRB decision, and a portio= n of the Town’s zoning ordinance. = Interested person John Blatt filed a response to the renewed motion. Appellant is now represented by A= llen W. Ruggles, Esq.; the Town is represented by Gregg H. Wilson, Esq.; John Blat= t and other interested persons represent themselves.

Factual Background<= /b>

            The following facts are undisputed unless otherwise noted:
            1. Appellant owns a one-acre lot on = the southwesterly corner of Mackay and River Streets in the Town’s M5 di= strict.

            2. On May 14, 20= 04, Appellant filed two applicat= ions, the first for final plan approval for a two-lot subdivision of the above mentioned parcel and the second for site plan approval for the proposed us= es on each of the two proposed lots.

    =         3. Appellant’s site plan appli= cations specified the following uses: on proposed Lot #1, “[m]ixed uses in a = 6,400 s.f. 2-story building. Lower= level will consist of 1,800 s.f. office/professional space (insurance plus a min= or tenant in same space) plus 1,800 s.f. for a teen center. The upper level consists of 3 apa= rtments (2-2 bedroom plus 1-3 bedroom).” On proposed Lot #2, Appellant inte= nds to relocate an existing manufactured home that is currently located on proposed Lot #1= .

            4. On September 3,= 2004, the DRB issued a notice of d= ecision, which included findings of fact, for Appellant’s “Minor Conventional Subdivision/Site Pla= n Final Plan approval.” The DRB decision contained certain findings, all of which appear to represent = that Appellant’s subdivision plan is in conformance with the Town subdivi= sion regulations. However, when a= motion was made to approve both of Appellant’s pending applications, with conditions, the motion failed to receive a majority of votes from the DRB members.

            5. Appellant thereafter timely filed= an appeal of the DRB denial of the subdivision and site plan applications.

Discussion

            Appellant’s renewed motion for summary judgment re-alleges the same procedural defects= that were raised in Appellant’s prior motion. The renewed motion also repeats Appellant’s request that this Court deem Appellant’s applicati= ons approved by operation of law. This se= ction of Appellant’s motion appears to be a mirror image of its earlier motion. Both of these issues= were addressed in the Court’s July 13, 2005 decision. The only difference in the two mo= tions, aside from supporting documentation, is a new section in which Appellant a= sserts that the applications comply with the Town’s ordinance and regulatio= ns. That, of course, is the substanti= ve question to be decided in this de novo appeal. It is the only question properly presented to this Court by Appellant’s motion.

            The DRB voted not to approve Appellant’s applications and included findi= ngs of fact in its notice of decision. = The DRB decision is not a model of clarity, especially regarding the general procedural issue that it had two applications before it to consider and de= cide upon.

            The question of whether the DRB’s decision was or was not supported by t= he facts, that is, whether the decision was or was not arbitrary and capricio= us, is not within our jurisdictional responsibility. As we stated in our July 13, 2005 decision, “this Court 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.” We may, however, rely on the find= ings of fact in the DRB’s decision because those findings are undisputed. While Appellant is appealing the DRB’s decision, he does not dispute the findings of fact. Indeed, he relies upon those findi= ngs in the instant motion. The DRB = findings concerning Appellant’s subdivision application may therefore be reli= ed on by the parties and this Court.

            There are material facts in dispute concerning one of the uses to which Appellant intends to put the subdivided lots, and how that use should be categorized within the definitions for permitted and conditional uses allowed in the M5 district. Those material fac= ts must be viewed in a light most favorable to the non-moving party, for purposes = of our analysis of Appellant’s summary judgment motion. See Toys Inc. v. F.M. Burlington Co., 155 Vt= . 44,= 48 (1990) (“The party against whom summary judgment is sought is entitl= ed to the benefit of all reasonable doubts and inferences in determining whether= a genuine issue of material fact exists”).

Interested person John Blatt r= aises concerns about the potential use of the subdivided property as a “te= en center.” He argues tha= t the project requires conditional use approval under § 500 of the Town’s zoning regulations because the “teen center” will include live bands and pool tables, which arguably constitute “indoor recreation” under § 453. Indoor recreation is only permitted as a conditional use in the M5 = zoning district, and, like all conditional uses, must be approved by the DRB befo= re a zoning permit is issued.
Based upon the facts presented= , viewed in a light most favorable to the non-moving parties in this proceeding, we cannot conclude at this time that the proposed teen center is a permitted = use in the M5 zoning district. T= hus, we cannot approve Appellant’s site plan approval request for the propos= ed teen center, at least not at this stage of this appeal. The question of whether Appellant’s proposed teen center fits within the enumerated permitted uses, or whether it is properly classified as a conditional use, must wait= for determination at a hearing on the merits.[2]

It is undisputed that the rema= ining uses Appellant proposes for his subdivided lots (offices, apartments, and a manufactured home) are permitted uses within the M5 district. We therefore grant partial summary judgment to Appellant-Applicant on his site plan application as to those proposed uses. We next consi= der Appellant’s subdivision application.[3]

            The reasoning for the DRB’s denial of Appellant’s subdivision application is unclear, but the DRB findings provide assistance in our consideration of that application. = The question before the DRB, and now before this Court, is whether Appellant’s application for a minor, two-lot subdivision meets the r= equirements of the applicable regulations. See In re Taft Corners Assocs., 171 Vt. 135, 141 (1991) (“subdi= vision review is not intended to police prospective uses of the subdivided lots”). This appeal mu= st therefore be decided under the Town’s subdivision regulations, not the Town= 217;s zoning regulations. We now p= roceed to examine the merits of Appellant’s minor subdivision application.<= span style=3D'mso-spacerun:yes'>

            While some technical deficiencies [4] exist in the supporting documentation supplied to this Court, the record is sufficiently complete for our review of the subdivision application’s merit. Section 300 of the Subdivision Regulations requires the submission of a sketch plan prior to = the submission of an application for subdivision approval. It is unclear from the pleadings = and accompanying documentation whether any such sketch plan was submitted; how= ever, the purpose of the sketch plan is to “enable the subdivider to save = time and expense.” Subdivis= ion Regulations § 200.11. The window of opportunity for those savings in this case has long since passed. It would serve no pu= rpose to require the submission of a sketch plan at this stage, and we will not require it here. =

After submission of the sketch= plan, the would-be subdivider must next submit an application for approval of the final subdivision plat. Minor subdivisions, unlike major subdivisions, need not submit an application for preliminary plat approval. T= he final subdivision plat must conform to the requirements of §§ 61= 0.1 and 610.2 of the Town’s Subdivision Regulations. Once submitted, the subdivision a= pplication is judged according to the standards in § 700 of the Subdivision Regulations.

The DRB found, and it is undis= puted here, that Appellant’s subdivision application meets the requirement= s of the subdivision regulations. Having met the requirements of the Town’s subdivision regulations, Appellan= t’s subdivision application must be, and is, granted.

            Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Appella= nt’s Motion for Summary Judgment is partially GRANTED, in so far as it prays for approval of Appellant’s subdivision application and for the uses pro= posed in Appellant’s site plan application, other than as a teen center, a= s referenced above.

We direct that Appellant-Appli= cant’s attorney prepare an appropriate Judgment Order to reflect the approval of = the subdivision and uncontested uses of the property. A pre-trial conference will be he= ld pursuant to a notice to be issued by the Court Manager. The parties should be prepared to discuss the scope and scheduling of the trial at that conference.

Done at Berlin, Vermont, this 3^rd day of N= ovember, 2005.

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  &nb= sp;            Thomas S. Durkin, Environme= ntal Judge