STATE OF
ENVIRONMENTAL
COURT
Appeal of
Wilkins Properties, LLC
Docket No. 176-10-04 Vtec
Decision and Order on Appellant’s Motion
for Summary
Judgment
Appellant Wilkins Properties, LLC
appealed from the decision of the Town of Milton Development Review Board (DRB),
which denied Appellant’s application for Final Plat approval for a two lot
subdivision of a parcel of land in the “Old Towne Residential/Commercial M5”
zoning district. Now pending before
this Court is Appellant’s Motion for Summary Judgment. Neither the Town of
The issues raised by Appellant’s
Motion and Statement of Questions can be summarized into two categories. First, as shown by the Statement of
Questions, Appellant alleges several procedural defects in the manner in which
the DRB addressed Appellant’s application, including the manner in which the DRB
rendered its decision. While some
or all of Appellant’s criticisms of the procedure the DRB followed in this case
may be true, we cannot grant summary judgment on this issue, for the following
two reasons. First, as noted in
more detail below, this Court has not received a copy of the DRB decision, so we
cannot independently assess its sufficiency. Second, since this is a de novo appeal, 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. Any decision properly
appealed to this Court provides it with the responsibility to consider the
subdivision application anew.
Appellant next argues that the
actions of the DRB were so deficient as to require this Court to render the DRB
decision meaningless. Appellant
follows this argument by suggesting that the proper remedy, once this Court
determines that the DRB decision should not be recognized, is to deem
Appellant’s application as approved, due to the DRB’s alleged failure to render
a decision within the 45-day period mandated by our Legislature in 24 V.S.A.
§ 4464(b)(1). This we cannot
do. Our Supreme Court has cautioned
that the “deemed approved’ remedy should not be used “beyond its intended
purpose,” which the Court defined as a “remedy [to zoning board] indecision and
protracted deliberations.” In re
Newton Enterprises, 167
The main deficiency in Appellant’s
argument is that this Court has not been given copies of the filings below, so
that it may make its own determination on the sufficiency of the DRB’s
decision. Given that this is a de novo proceeding, the Court would also
need to receive copies of the then current Milton Zoning Ordinance, Appellant’s
application and supporting documentation, including site
maps.
While V.R.C.P. 56 does not mandate
that parties file affidavits to support their respective positions for or
against a pending motion for summary judgment, the initial burden rests squarely
with the moving party to convince a trial court that (1) the facts material to
the case are not in dispute and (2) the applicable legal precedent requires that
judgment be entered in their favor.
Miller v. Merchants Bank, 138
The Court is aware that this case has
been pending for some eight months or more. It appears from an assertion in
Appellant’s Motion that its application may have first been submitted to the
Town for review more than one year ago.
We are also aware that Appellant’s Motion was filed with this Court over
six months ago, before the undersigned was appointed and before this Court went
through some significant transformations as of
Accordingly Appellant’s Motion for
Summary Judgment is DENIED, with
discretion to renew once the factual record is more
complete.
Done at
Thomas S. Durkin, Environmental Judge
Date ______________ copies sent
to:
Clerk’s initials: ________
Attorney
Glitman
Attorney
Jane M.
Lafayette
John
Sharrow
John Blatt
Sandra
Richards
Sharon R.
Hazen
Horace & Ann
Clark
Ronald L.
Stewart
Robert
Lemons