Nye Conditional Use Permit

M/.\R 2 1'2012 State of Vermont - VERMONT

Superior Court- Environmental Division SUPER|OR COURT ENVIRONMENTAL DIVlSlCN ` ENTRY REGARDING MOTI()N In re NVe Conditional Use Permit Docket No 75-4-09 Vtec

(Appeal from Town of Ferrisburgh Zoning Board of Appeals decision) Title: Motion for Summary ]udgment (Filing No., 5) Filed: September 21, 2011 Filed By: Appellant Steve Lowther Response: None _ Granted __)_(_ Denied __Other _ Steve Lowther (”Neighbor”) has filed a motion seeking summary judgment on Question 1 of hi.s Statement of Questions: ”Whether there was proper public notice of the subject conditional use application?” Neighbor alleges that notice for the Town of Ferrisburgh Zonin_g Board of A-ppeals' (”the ZBA”) April 1, 2009 hearing on Edythe Nye’ s (”Applicant”) zoning permit application W_as materially defective and that remand to the ZBA for a properly noticed hearing is required. Neither Appli_cant nor any other party appearing in this matter has filed a response to Neighbor’ s motion.

We will only grant a party’ s request for summary judgment evenif it is unopposed, if the party shoWs, with ”pleadings, depositions, answers `to interrogatories,' and admissions on file, together with the affidavits, if any, referred to in the statements [of material facts] required by Rule 56(c)(2 ), ” that ”there is no genuine issue as to any material fact" and that the party is ”entitled to judgment as a matter of law. " V. R. C. P. 56(c)(3) (2011) (amended ]an 23, 2011)1; see 'V.R.E.C.P. 3. We apply this standard When considering Neighbor’ s unopposed motion and the factual allegations included in his statement of material facts Procedural History The following procedural history and facts are undisputed On October 29, 2008, 'Applicant applied for a zoning permit for a ”Home occupation or Accessory use 'B’” (Application '#08-099) to use part of a garage for a Woodworl<ing shop. Neighbor received Written notice that a public hearing on the application would be held by the ZBA on December 3, 2008. On December 3, 2008, the ZBA opened a public hearing on _Application #08-099, Neighbor did not attend the meeting, but he submitted a letter expressing his concerns about

Nye Conditional Use Permi‘t No. 75-4-09 Vtec (EO on Motionfor Summary Judgment) Pg. 2 of 4 the application that the ZBA Chair read-aloud during the meeting The meeting minutes reflect that at the end of the meeting it was announced that the hearing was recessed until February 3, 2009, The actual date of the continued hearing was February 4, 2009.. Applicant did not attend the February 4, 2009 meeting of the ZBA, and it was announced that the hearing on Application #08-099 was again recessed and would be continued on l\/larch 4, 2009 at 7:00 pm. ' By a letter to the Town of Ferrisburgh Zoning Adminisu'ator (”the'ZA") dated l\/larch 4, 2009, Applicant asked to withdraw Application #08-099, stating that she would file a new application Nonetheless; Applicant participated in the continued hearing for Application #08- that same evening (l\/larch 4, 2009). Neighbor also attended the meeting lie provided comments on Applicant’s proposed use, presented a copy of a property survey, and read a letter from lanuary 1-9, 2009 that he had sent to. the ZA. The meeting minutes reflect that-after taking public comments on Application #08-099, the ZBA Chai`r announced that the hearing was recessed until April l, 2009 at 7:05 pm. _ On March 16, 2009, notice was published in the Addison Countv lndependent of a » public ZBA hearing to be held /'Wednesday, April ll, 2009.”2 lt stated that the ZBA 'Would consider, among other applications, ”[a]pplication #09-011 by Edyth Nye for an Accessory Use 'B’ of her detached garage as a Woodworking shop under the.provisions of Article lX Section 9.4 of the Town of Ferrisburgh Zoning Bylaws" and that the subject property ”is inthe Rural` Agricultural RA 5 Zoning District and is located at 474 Echo Road, 'Parcel' lD #11-01-07.” (Appellant’s Mot. for Summ. ]., Ex. 7, filed September 21, 2011.) The published notice indicated . that the application was available for inspection at the Town Clerl<’s Office and that participation in the,hearing was a prerequisite to the right to appeal E. On March 23, 2009,‘ Applicant filed Application #09-011. Application #09~011 sought conditional use approval for the same use-”Home occupation or Accessory use 'B’”-on the same property as the application that Applicant had asked to withdraw, Application #08~099. ' On Wednesday, April 1, 2009, the ZBA Chair opened the public hearing on` Application #09-011. . Neighbor provided comments during the hearing. The Chair closed the hearing the same day, and the ZBA voted to approve the application3 Nei_ghbor thereafter appealed the -ZBA’_s decision to this Court and sought summary judgment on the question of Whether the notice for the April 1, 2009 hearing was adequate - ' ' " Analy' sis A municipal panel is required to hold public hearings on conditional use applications V.S.A. § 4464(a)(l). Notice of such hearings must be published in a newspaper, be posted in_ ' three or more public places, and include information about the date, place, and purpose of the hearing'. l_d_. Written notification must also be provided both to the applicant and to landowners With property adjoining the subject property. _l_d_. Subsequent days of a hearing

Second, Neighbor, and anyone else in attendance at the l\/larch 4, 2009 day of hearing for , Application #08-0899, Was given notice that the hearing would be continued on April 1, 2009 at ' :05 pm. Although the meeting minutes do not reflect that the ZBA Chair explicitly indicated that the continued hearing Would take place in the same location, We understand that the location Was implied Neighbor does not assert that this notice for recessing and continuing the hearing Was inadequate; nor does he argue that the Written notice he received for the initial day of hearing, December 3, 2008, was insufficient Thus, under the guidance of 1 V.S.A. § 312(c)'(4), we regard these notices, in combination, to have provided adequate notice for the April 1, 2009 day of hearing.4

Town as to Whether the date was correct or was a typographical error. However, we encourage the ZBA to take greater care When announcing public hearing dates. ' Nze Conditz'onal Use Permz`t No. 75-4-09 Vtec (EO on Moz‘ion for Summa)y Jua"gment) Pg 4 of 4 ' We also note that the meeting minutes for the April 1, 2009 day of hearing reflect that Neighbor actually attended the meeting and provided public comments regarding Applicant's proposed use. (See Appellant’s Mot. for Summ. ]., EX. 9, filed September 21, 2011.) The purpose of the notice provisions is to inform interested persons of a proposed action and to give them a reasonable opportunity to express their support or opposition See Town of Mendon V. Ezzo, 129 Vt. 351, 357-58 (1971) (interpreting a previous version of 24 V.S.A. § 4464(a), formerly codified as 24 V.S.A. § 4447). Despite Neighbor’s argument that the notice for the meeting on April 1, 2009 Was inadequate, he was informed about Applicant’s proposal and he took advantage of the opportunity to provide comments on that proposal during the meeting Conclusion ' Because Neighbor’s factual allegations, and his supporting affidavit and exhibits ,' show that he is not entitled to judgment as a matter of law on Question 1, we must DENY Neighbor’s motion. ` ‘ ~' ~ Pursuant to the September 27, 2011 Entry Order We issued in this matter, the matter was placed on inactive status pending resolution of a related Superior Court matter in the Addison Unit of the Civil Division, Docl<et' No. 212-8~10 Ancv. During the October 17l 2011 Environmental Division status conference, the parties requested that Neighbor’s motion for summary judgment be considered and decided. rl`hus, the Court now directs Applicant to, on or before April 5, 2012, provide a status report to the Court, in writing, regarding the Civil Division matter. ' ' . ' 1 ' / UWI g - . March 21,20:12 Thomas G_. Walsh, judge Date ` Date copies sent to: . 5;‘@2{§/£ Clerk‘s Initials£/é@ Copies sent to: .

Appellant Steve Lowther, pro se Robert ]. Kaplan, Attorney for Appellee Edythe Nye lnterested Person Dylan Griffin `