State of Vermont
S_uperior Court-Environmental Division MAR 2 9 §sz
ENTRY REGARDING'MOTION SUF§§?¢“Q°¢NSURT
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In re Foregger Revocable Trust 4-Lot Subdivision Docket No. 157-10-11 Vtec
(DRB Zoning/Subdivision)
Title: l\/lotion for Summary ludgment (Piling No. 1)
' Filed: ]anuary 13, 2012
Filed By: Appellees judy Poregger, and Douglas and Robert Foregger, Trustees
Response in Opposition filed 2 / 9 / 12 by Appellants jeffrey L. and Susan L. Arnestoy
Reply filed 2/ 21 / 12 by Appellees ]udy Foregger, and Douglas and Robert Foregger, Trustees
___ Granted ` ___ Denied L Other
]effrey and 'Susan Amestoy (”Neighbors”) appeal a September 15, 2011 decision by the
Town of Waterbury Development Review Board (”the DRB”) approving a zoning permit
application submitted on behalf of the beneficiary and trustees of the Foregger Revocable Trust
(”Appellees”) for a four-lot subdivision on property owned by Appellees and located in the
Medium Density Residential zoning district in Waterbury Center, Vermont. Neighbors contend
that the Town and Village of Waterbury Zoning» Regulations (”the Regulations”) require site
plan review of Appellees’ subdivision application ln reviewing the subdivision application,
the DRB did not engage in site plan review. n
As part of their appeal, Neighbors filed`a Statement of Questions containing two
Questions. The first Question asl{plicit in the new version of V.R.C.P. 56, Which took effect lanuary 23, 2012, is the
Court's ability to grant summary judgment on grounds not raised by any party. See V.R.C.P.
Foregger Rei)ocable Trust 4~L0t Subdz'v, No. 157-10~11 Vtec (EO on Motionfor Summ ])(03~29-2012) Pg. 2 of 4
56(f)(2) (]'an. 23, 2012). We may only do so, however, ”[a]fter giving notice and a reasonable
time to respond.” E.l
g in their motion for summary judgment, Appellees contend that the DRB’s decision does
not address Whether the Regulations require site plan review of Appellees' proposed
subdivision and that, asa result, the DRB issued no ”written decision” on the issue of site plan
review from which Neighbors can appeal, (Appellees’ l\/lot. for Summ. ]. 4, filed ]an. 13, 2012.)
Accordingly, Appellees assert that the Court does not have jurisdiction under 10 V.S.A. § 8504
to consider Neighbors’ Questions concerning site plan'review. Neighbors respond that they
have a right to appeal the DRB’s decision and that the authority of the Court to hear an appeal
is not limited by the language that the DRB chooses to include in its decision
Under 10 V.S.A. § 8504(b), an interested person can appeal an ”act or decision” by a
development review board. This Court has been granted jurisdiction to consider appeals
brought under 10 V.S.A. §_8504(b). See 1 V.S.A. § 34(1). Section 4464(b)(1) of Title 24of the
Vermont Statutes Annotated requires that DRB' decisions be issued in writing and that the
' meeting minutes can suffice as a written decision if they include ”factual bases and conclusions
relating to the review standards."
No party here is contending that l\leighbors have not properly appealed the DRB's
decision or that the DRB's decision, in terms of its analysis under the sections in the Regulations
that it does address, is not a written decision that complies With 24 V.S.A. §4464. lnstead,
Appellees contend that, because the DRB did not refer to site plan review, the DRB’s decision is
not a written decision on that issue, and therefore the Court lacks jurisdiction to consider
whether site plan review is necessary
The DRB is not required to include in its written decision a discussion of the sections of
the Regulations that do not apply to an application before it. By omitting from its decision any
discussion of Section 301 of the Regulations, which regulates site plan review, the DRB
necessarily determined that Appellees’ proposed subdivision did not require site plan approval
before the DRB could grant a Zoning permit Under 1 V. S. A. § 34(1),` We have jurisdiction to
consider Neighbor' s Questions regarding whether the application before the DRB, and before
us on appeal, requires site plan review. See 10 V.S.A. § 8504(h). ln other Words, We do not
agree with Appellees that the lack of reference to site plan review in the DRB’s written decision
prevents us from considering these Questions in the context of Neighbors’ appeal of that
decision We have jurisdiction to consider the Questions on appeal
We are further inclined, for the following reasons, to answer both Questions by
concluding that the Regulations do not require site plan review of Appellees’ subdivision
application
We' interpret the Regulations using the familiar rules of statutory construction l_n re
Appeal of Trahan, 2008 VT 90,1{ 19,184 Vt. 262. That is, we ”construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance ” l__d
Nonetheless, ”[e]ven the very Words used by the legislature in the enactment must yield to a
construction consistent with legislative purpose." Lubinsl/?/‘z // 2..» Clerl<'s lnitials: }'§
Copies sent to:
Appellants ]effrey L. and Susan L. Amestoy, pro se
Amanda Lafferty and David W. Rugh, Attorneys for lnterested Person Waterbury Center
Christopher ]. Nordle, Attorney for Appellees judy Foregger, and Douglas and Robert Foregger, Trustees