content-type: multipart/related; boundary="----=_NextPart_01C5BAAB.5D498380" mime-version: 1.0 This document is a Web archive file. If you are seeing this message, this means your browser or editor doesn't support Web archive files. For more information on the Web archive format, go to http://officeupdate.microsoft.com/office/webarchive.htm ------=_NextPart_01C5BAAB.5D498380 content-location: file:///C:/C939A08C/MaddenAppeal.htm content-transfer-encoding: quoted-printable content-type: text/html; charset="us-ascii" 119-7-04 Vtec

STATE O= F VERMONT=

&n= bsp;

ENVIRON= MENTAL COURT

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        =             &n= bsp;           &nbs= p;            =    }

Appeal o= f Madden        =          }        =    Docket Nos:

        =             &n= bsp;           &nbs= p;            =    }        =    105-6-04 Vtec (from 4/27/04 ZBA Decision)

        =             &n= bsp;           &nbs= p;            =    }        =    119-7-04 Vtec (from 6/3/04= Planning Comm. Decision)

        =             &n= bsp;           &nbs= p;            =    }

 

Deci= sion and Order

 

This appeal came up for a merits hearing on April 13, 2005.&nb= sp; The Appellant, John A.G. Madden, appeared pro se.  The Town of New Haven (“Town”) participated in these proceedings through its attorney, James H. Ouimette.  Appellee-Applicant State of Vermo= nt, Department of Buildings & General Services (“State”), was = represented by Attorneys William H. Rice and Jeff W. Lively.  Appellee-Applicants Peter Norris,= Sr. & Peter Norris, Jr. (“Norrises”) were represented by Attor= ney Donald R. Powers.  At times i= n this Decision, the State and the Norrises are collectively referred to as Appellee-Applicants.

Both pending appeals relate to the development of a parcel of land located on the easterly side of U.S. Route 7 in New H= aven, Vermont.  Docket No. 105-0-04 Vtec concerns= an amended subdivision approval that the New Haven Zoning Board of Adjustment (“ZBA”) granted the Appellee-Applicants.  Docket No. 119-7-04 Vtec concerns= the State’s site plan, approved by the New Haven Planning Commission (“Planning Commission”), to construct and maintain a new Vermo= nt State Police barracks and related facilities on Lots 2 and 3 of the Norrises’ subdivision, with a related communications tower on Lot 1.=

The proposed development has also been the subject of other judicial proceedings.[1]  The first—Docket No. 186-11= -01 Vtec—concerned the first appeal by Mr. Madden of a subdivision appro= val issued to the Norrises by the ZBA for a four (4) lot subdivision.  That appeal was the subject of Fi= ndings of Fact and an Order filed November 22, 2002.  Those Findings and the Order were appealed by Mr. Madden to the Vermont Supreme Court, which upheld this Court’s Decision to grant Appellee-Applican= ts subdivision approval.  See In re Madden, No. 03-121 (Vt. = July 18, 2003) (unpublishe= d mem.).

Mr. Madden also appealed the first site plan approval granted to the= State by the Planning Commission (see Docket No. 213-11-01 Vtec).  This Court dismissed that appeal = as moot in its Decision of March 14= , 2002, after the State gave notice that it did not intend to go forward with this= approved site plan.

Mr. Madden also appealed a subsequent site plan approval issued to t= he State in Docket No. 36-3-04 Vtec.  That appeal was also dismissed as moot once Mr. Madden appealed the= site plan approval at issue in this Decision—Docket No. 119-7-04 Vtec.

Based upon the evidence presented at the hearing,[2] the Court makes the following Findings of Fact and Conclusions of Law.

Findings of Fact

  1. The Appellee-Applicants’ most recent subdi= vision approval from the ZBA actually is an amendment to the subdivision pla= n approved by this Court in Docket No. 186-11-01 Vtec and affirmed by the Vermont Supreme Court in In re Madden, No. 03-121 (Vt. July 18, 2003) (unpublished mem.).  The changes to the subdivision plan most recently approved by the ZBA consisted of the following: (a) realignment of the curb cut on to U.S= . Route 7, so that it was directly across Route 7 from another curb cut to the west for Dog Team Road; (b) realignment of the interior driveway to s= erve Lots 2 and 3 (i.e. the lots purchased by the State); and (c) minor ch= anges to the location of the easement encumbering Lot 1 for the siting of a= nd access to a communications tower.[3]=
  2. The ZBA considered the Applicants’ amended= subdivision plan at its April 27, = 2004 meeting.  That meeting w= as warned and noticed, as evidenced by Appellee-Applicants’ Exhibi= ts 15 and 16.
  3. Mr. Madden has posed identical Questions Present= ed in both pending appeals, challenging the sufficiency of notice and questioning the general legality of the respective subdivision and si= te plan approvals.
  4. The Planning Commission considered the StateR= 17;s most recent site plan at its June 3, 2004 meeting.  That meeting was warned and noticed, as evidenced by Appellee-Applicants&#= 8217; Exhibits 19 and 20.
  5. The Town has not enacted provisions for the loca= tion of state owned property, as contemplated by both 24 V.S.A. §4409= [4]= and §518 of the New Haven Zoning Ordinance (which language is identical).  Thus, the o= nly aspects of the proposed site plan under review in these proceedings a= re “size, height, . . . , setbacks, . . . , off-street parking, . = . . , [and] landscaping or screening requirements . . . .”[5]=
  6. Appellee-Applicants have acquired the necessary = state permits for both the amended subdivision (including curb cuts onto Ro= ute 7) and for the State’s proposed land use (i.e. an Act 250 permi= t).  In connection with the latte= r state permit, the Appellee-Applicants were required to locate the communica= tions tower that is necessary for the State Police facility as far away from Route 7 as possible to minimize its visual impact from the traffic co= rridor.
  7. The proposed communications tower is now located= on Lot 1, which Peter Norris will retain, subject to an easement for siting = and access to the tower.  Su= ch access runs along the revised interior drive shown on Appellee-Applicants’ revised site plan.  See Ex. 2-B.
  8. The changes to the Route 7 curb cut were made to minimize the different intersections on Route 7 in this neighborhood.=   The change allows for a comm= on intersection to be used both by visitors to the proposed site and motorists using Dog Team Road<= /st1:Street>.
  9. The credible evidence suggests that the proposed siting of the State Police barracks and related facilities will not materially degrade the safety of this section of Route 7.  In fact, the uncontroverted testimony = was that safety on Route 7 may increase due to the proximity of the propo= sed State Police facilities.
  10. The Town Zoning Ordinance identifies the proposed project area as mostly in the highway commercial (HC) district, which= is generally identified in this neighborhood as being 1,000 feet from the center line of Route 7.  Lots 2 and 3 are completely within the HC district.  While most of Lot= 1 is similarly zoned, a thin sliver on the rear (i.e. easterly) bound= ary is in one of the rural agricultural (RA) districts.
  11. The neighboring properties include commercial and retail establishments.  = While not abutting the subject property, there are some residences in the surrounding neighborhood, including Appellant’s primary residen= ce.
  12. The size, height, and setbacks of the proposed structures are in conformance with the applicable town regulations.
  13. The proposed off-street parking and landscaping = also conform to town regulations and do not create an undue adverse impact= on the neighborhood.

Conclusions = of Law

As was previously held by this Court, we must apply the Town Regulat= ions to the facts presented to us.  In Re Appeal of Madden, Docket No. 186-11-01 Vtec (= Vt. Envtl. Ct. Jan. 18, 2002), aff’d In= re Madden, No. 03-121 (Vt. = July 18, 2003) (unpublishe= d mem.) (citing Chioffi v. Winooksi Zoning Board, 151 Vt. 9,13 (1989)).  In doing so, we conclude that the amendments to Appellee-Applicants’ subdivision pla= n contain only minor revisions that are in conformance with the Town subdivision regulations.

Further, in reviewing the State’s site plan, we conclude that = it complies with all applicable provisions of the Town Ordinance and 24 V.S.A. §4409 (2003).  The propo= sed structures do not exceed the applicable height, size, or setback restrictions.  The site has b= een designed with sufficient landscaping, building color tones, and off-street parking so as to minimize the impact to the surrounding neighborhood.  The proposed structures will blen= d in well with the existing commercial and retail facilities in the surrounding neighborhood.  The presence o= f a State Police facility in the neighborhood has a greater likelihood to enha= nce, rather than diminish, the safety for nearby residences.

We therefore APPROVE Appellee-Applicants’ site plan in Docket No. 119-7-04 Vtec and GRANT the Appellee-Applicants’ application for an amended subdivision permit in Docket No. 105-6-04 Vtec.[6]=

 

 

 

   &nb= sp;            = ;            &= nbsp;           &nb= sp;       ___________________________= _____        April ____, 2005

   &nb= sp;            = ;            &= nbsp;           &nb= sp;               =     Thomas S. Durkin     &nb= sp;            = ;            &= nbsp;          Date=

   &nb= sp;            = ;            &= nbsp;           &nb= sp;               =     Environmental Judge

 

 

Date _________ copies= sent to:        =             &n= bsp;           &nbs= p;            =         =             &n= bsp;                   =             &n= bsp;                  Clerk’s Initials: __________

 

John A.G. Madden=

Attorney James H. Oui= mette

Attorney Donald R. Po= wers

Attorney William H. R= ice

Attorney Jeff W. Live= ly


[1]  All previous and pending Environmental Court proceedings are titled “Appeal of Madden”.  Each new appe= al was given a new Docket number.

[5]  Other aspects of a site plan may = be regulated under both the ordinance and statute, but are not applicable in = this case.  See In re Appeal of Department of Buildings and General Services, 176 Vt. 4; 2003 VT 92 (2003).

[6]  Appellee-Applicants also received= a zoning permit from the Town Zoning Administrator.  See Ex. 10.  Since Appellant chose not to appe= al this previously issued zoning permit, its validity is not a question preserved = for challenge in this Court.

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