Woodstock Community Trust & Housing Vt. PUD ( 2010 )

Superior Court of Vermont
Environmental Division
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E N T R Y O R D E R
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Woodstock Community Trust & Housing Vermont Docket No. 203-10-09 Vtec
Project: Woodstock Road PUD
Applicant: Woodstock Community Trust, Inc.
Municipal DRB Planned Unit Development
Cross-Motions for Summary Judgment, Nos. 3 & 4
Two appeals are pending involving a 36-unit housing development in West
Woodstock. This Court issued a decision on a prior application for the project property
in In re Woodstock Community Trust and Housing Vermont PRD, No. 100-5-07 (Vt.
Envtl. Ct. Oct. 15, 2008.) The 2008 decision determined that some aspects of the prior
proposal met the standards of the municipal ordinance, while other aspects of the prior
proposal did not meet the applicable review standards. Question I of the Statement of
Questions in the present municipal appeal, No. 203-10-09 Vtec, involves whether this
case presents an impermissible successive application. It has been submitted to the
Court on cross-motions for summary judgment.
The statute allows, but does not require, an appropriate municipal panel such as
the DRB, and hence this Court in this de novo appeal, to “reject an appeal or request for
reconsideration . . . if the [DRB] considers the issues raised by the appellant in the
appeal have been decided in an earlier appeal or involve substantially or materially the
same facts . . . .” 24 V.S.A. § 4470. The Vermont Supreme Court has explained that a
municipal panel should “not entertain a second application concerning the same
property after a previous application has been denied, unless a substantial change of
conditions ha[s] occurred.” In re Armitage, 181 Vt. 241, 244 (2006) (citing In re Carrier,
155 Vt. 152, 158 (1990)). The substantial change in conditions may involve an extrinsic
occurrence, not at issue in the present appeal, such as a change in the zoning ordinance
applicable to the project, or a widening or re-routing of a neighboring roadway.
Equally, the requisite substantial change may be a change in the project design to
address the reasons for which the first application was denied. That is, a municipal
panel may consider a successive application “when the application has been
substantially changed so as to respond to objections raised in the original application or
when the applicant is willing to comply with conditions the commission or court is
empowered to impose.” In re Jolley Associates, 2006 VT 132, ¶ 12, 181 Vt. 190 (quoting
In re Carrier, 155 Vt. at 158); see also, e.g., In re McGrew, 2009 VT 44, ¶ 10 (“[A] local
planning agency or court may consider a second application which has been
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substantially changed to respond to objections to the first.”); In re Dunkin Donuts S.P.
Approval (Montpelier), 2008 VT 139, ¶ 8 (By “address[ing] all concerns that prevented
approval of the prior application,” an applicant is not bound by the previous denial and
may resubmit a proposal to the appropriate municipal panel.).
Exhibit A to Appellee-Applicant’s motion contains the application’s narrative
describing the changes to the proposed project; it includes a section specifically relating
the changes in the application to specific paragraphs of the Court’s 2008 decision
addressing the reasons for which the former application was denied. The application
now before the Court has been redesigned or changed to address the concerns that
prevented approval of the prior application. Accordingly, Appellants’ motion for
summary judgment to dismiss this application as an impermissible successive
application is DENIED. This determination simply means that the application can
proceed to its merits in this Court; it is not a ruling as to whether any redesigned
element of the project now meets the applicable review standards.
As discussed at the telephone conference held on July 12, 2010, the dates of
October 20, October 21, and October 29 may be available to begin the trial (otherwise
scheduled for November 1 through 4) on an earlier date, as preferred by Appellee-
Applicants. The parties agreed to move the trial up to begin on the earliest available of
those dates, and to check with their witnesses as to whether those dates are available in
the witnesses’ schedules. On or before July 20, 2010, the parties shall report any
unavailable dates in writing to the Court.
Also as discussed at the telephone conference, the parties may file as prefiled
testimony or evidence any testimony or evidence presented at the hearing of the earlier
case. Supplemental direct testimony may be presented from any witness whose
prefiled testimony is filed, and all witnesses shall be made available at trial for cross-
examination. On or before September 3, 2010, the parties shall provide each other and
the Court with a list of what prefiled testimony or evidence they propose to submit. A
telephone conference has been scheduled for September 13, 2010, to discuss the
proposed prefiled testimony and exhibits.
__________________________________________ _July 13, 2010_____________
Judge Date
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Date copies sent to: ____________ Clerk's Initials _______
Copies sent to:
Attorney Kaveh S. Shahi for Appellants
Attorney C. Daniel Hershenson for Appellees Woodstock Community Trust,
Inc., and Housing Vermont
Attorney Todd C. Steadman for Town of Woodstock
Attorney Mark L. Lucas for NRB Land Use Panel, for information only
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