State of Vermont
                            Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Noyes CU Permit                                        Docket No. 98-7-11 Vtec
(Appeal from Town of East Montpelier Development Review Board decision)

Title: Motion for Summary Judgment (Filing No. 1)
Filed: September 26, 2011
Filed By: Applicants/Appellants Steven and Janet Noyes
Response in Opposition filed on 10/19/11 by Town of East Montpelier
Reply filed on 11/03/11 by Appellants Steven and Janet Noyes


    Granted                    X Denied                      ___ Other

        Steven and Janet Noyes (“Applicants”) have appealed a decision of the Town of East
Montpelier Development Review Board (“the DRB”) denying their application for a zoning
permit following site plan and conditional use review. Applicants own a 3.8± acre parcel in the
Town of East Montpelier, Vermont (“the Town”) located in two zoning districts: the Industrial
District and the Conservation Areas Overlay District (in particular, the Conservation Overlay
Aquifer Protection Area S). The parcel currently contains a warehouse and four rental storage
buildings. Applicants propose to convert a portion of the warehouse into two residential
apartments, each with two stories, two bedrooms, and additional front windows.
        Applicants now move for summary judgment, arguing that they are entitled to a zoning
permit under the East Montpelier, Vermont Land Use & Development Regulations (“the
Regulations”), as last amended on October 18, 2010. The Town opposes their motion, arguing
that the proposed development is neither a permitted nor a conditional use in the Industrial
District, and that Applicants are therefore not entitled to a permit.
        In addressing a motion for summary judgment, the Court first inquires whether there is
a “genuine issue as to any material fact.” V.R.C.P. 56(c)(3); see also V.R.E.C.P. 5(a)(2). That is,
the Court must determine whether there are material facts in dispute or absent from the record.
If we find none, we then must ask whether the moving party is entitled to judgment as a matter
of law. See V.R.C.P. 56(c)(3). In this de novo proceeding on their zoning permit application,
Applicants bear the burden of proof to show that they are entitled to the zoning permit.
Because Applicants’ pending motion seeks judgment on their appeal in its entirety, we must
find that Applicants have met this burden before we can rule in their favor.
        Applicants here appeal the DRB’s conclusion that their proposed development is neither
a permitted nor a conditional use—in other words, the DRB found the development is a
prohibited use—in the applicable zoning districts. In seeking summary judgment, Applicants
do not argue that their proposed development qualifies as a permitted use; rather, they argue
that it is a conditional use. However, under Regulations § 5.1, if the DRB (or this Court on
In re Noyes CU Permit, No. 98-7-11 Vtec (EO on Mot. for Summary Judgment) (12-12-11)          Pg. 2 of 3


appeal) finds that a use qualifies as a conditional use, the DRB (and this Court) must then
complete site plan and conditional use review and approval in order for the underlying
application to be granted. See 10 V.S.A. § 8504(h); 24 V.S.A. §§ 4414(3), 4416.1 Additionally, the
DRB and this Court must determine whether the proposed development complies with all
applicable district-specific and general development standards. See Regulations §§ 2.3(B), 3.1,
4.10(A)(3).
        Although Applicants bear the burden of proof, they have not put forward sufficient
allegations for us to determine that their proposed development meets the standards for site
plan and conditional use review or for the applicable zoning districts. Consequently, we must
DENY their motion for summary judgment in so far as it requests that we conclude that they
are entitled to a zoning permit as a matter of law. We now consider whether they are entitled to
partial summary judgment based on their argument that the proposed development qualifies as
a conditional use.
        The Regulations state that any use allowed in the Industrial District is also considered a
conditional use in the Conservation Areas Overlay District. See Regulations § 2.3, Table 2.6
(establishing that “[a]ll other uses allowed within the underlying zoning district” are
considered conditional uses in the Conservation Areas Overlay District). Thus, the pertinent
question is whether Applicants’ proposed development qualifies as a conditional use in the
Industrial District. Applicant’s proposal is to convert a portion of the existing warehouse into
two residential apartments, thus creating a building with multiple uses, existing on a parcel of
land that would also contain four existing rental storage buildings.
       Under Regulations § 4.10, “[i]n designated zoning districts, more than one principal use
may be allowed within a single building, or on a single lot,” provided other provisions are met,
including that each of the proposed uses is “allowed as a permitted or conditional use within
the zoning district in which the mixed use is located.” Reinforcing this portion of the
Regulations is the inclusion of “mixed use” as an allowed conditional use in Industrial District
Zone B. Regulations § 2.3, Table 2.2. The definition of mixed use is “[a] building or parcel
containing two (2) or more principal uses which are otherwise allowed as permitted or
conditional uses in the district in which the building or parcel is located.” Regulations § 8.2.
        Applicants argue that their proposed development will create a “mixed use” building
consisting of the permitted use of “warehouse storage” plus a new conditional use that either
qualifies as two “single-family dwellings” or fits the requirements of the use described in
Regulations § 2.3, Table 2.2(C)(16). The conditional use described in Table 2.2(C)(16) is “[a]ny
other use the Development Review Board determines to be similar in scale, intensity and
potential impact as other uses allowed as permitted or conditional uses in this district.” The
Town argues, in opposition, that the two proposed apartments should be thought of as one
“two-family dwelling,” and that such use is prohibited in the Industrial District.

1 Although the DRB’s decision states that the DRB completed site plan and conditional use review, the
decision does not include any specific factual findings and legal conclusions regarding the proposed
development’s compliance with the standards listed in Regulations § 5.3 and § 5.4. More importantly, it
is unclear why the DRB completed such a review when it also determined that the proposed
development was not, in fact, a conditional use, but rather was prohibited. Because site plan and
conditional use review are only conducted for uses allowed in a district, we conclude that questions of
compliance with the standards for site plan and conditional use review are properly before us in this
appeal.
In re Noyes CU Permit, No. 98-7-11 Vtec (EO on Mot. for Summary Judgment) (12-12-11)                    Pg. 3 of 3


       Applicants are the moving party here and bear the burden of proof, but they have not
provided us with sufficient allegations to determine that their proposed development qualifies
as a mixed use. In particular, Applicants have failed to provide us with facts regarding whether
their proposed development is similar in scale, similar in intensity, and similar in potential
impact as one single-family dwelling or other allowed use.2 Because we cannot find in
Applicants’ favor based on the record before us, we must DENY their motion for summary
judgment.
        We direct the parties to review the standards in the Regulations applicable to Applicants
zoning permit application in preparation for trial. It is also ordered that, by Friday, December
30, 2011, the parties shall notify the Court, in writing, of their unavailable dates in the months of
February and March, 2012 for a trial at the Environmental Division Courthouse. They should
also indicate in their letter the number of trial days they anticipate will be necessary for a full
presentation of the evidence from all of the parties. The Court will thereafter notify the parties
of the trial date or dates.




_________________________________________                                       December 12, 2011             _
       Thomas S. Durkin, Judge                                                        Date
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Date copies sent to: ____________                                            Clerk's Initials _______
Copies sent to:
    Attorney Paul S. Gillies for Appellants Steven and Janet Noyes
    Attorney Bruce Bjornlund for Interested Person Town of East Montpelier




2 Although it appears that the proposed development is more aptly characterized as one two-family
dwelling rather than two single-family dwellings, we do not foreclose Applicants from making
arguments regarding the proper characterization of their proposed development at trial.