STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Stoddard Site Plan } Docket No. 255-11-06 Vtec
(Appeal of Adams) }
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Decision and Order on Cross-Motions for Summary Judgment
Appellant John T. Adams appealed from a 2006 decision of the Planning
Commission of the Town of Fair Haven approving Appellee-Applicant (Applicant) Bruce
Stoddard’s application for site plan approval for 28 Prospect Street. Appellant appeared
and represents himself; Appellee-Applicant is represented by Phyllis R. McCoy-Jacien, Esq.
The Town did not enter an appearance in this matter.
In an appeal of an earlier proposal for the same property involving the same parties,
Docket No. 254-12-05 Vtec, this Court had denied site plan approval only as to the wing
apartment of Applicant’s proposed multi-family dwelling, ruling that it did not contain
sufficient common facilities to qualify as a “housekeeping unit” under §140 of the Zoning
Regulations. The denial was made “specifically without prejudice to Applicant’s submittal
of any subsequent application for site plan approval, even one that proposes the same
division of units within the former nursing home, but so that the wing apartment contains
enough common facilities to qualify as a housekeeping unit.”
The present appeal involves an application which differs only as to some aspects of
the interior of the so-called wing apartment. Accordingly, the Court incorporates the
description of the other aspects of the project from its June 21, 2006 decision in Docket No.
254-12-05 Vtec. Appellee-Applicant now proposes to convert Room 5 to be a common
bathroom for the use of the residents of the wing apartment, and to convert Rooms 2 and
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6 (by removing their sinks and closets and closing off access to their adjoining bathrooms)
to allow their use as common living areas for the use of residents of the wing apartment
(together with the common lounge already proposed). The wing apartment is now
proposed to have five bedrooms: those in Rooms 1, 3 and 7 with private bathrooms, and
those in rooms 8 and 9 sharing a bathroom.
Appellee-Applicant was entitled by the terms of the remand order in Docket No.
254-12-05 Vtec to revise his application and submit a revised application to the Planning
Commission for site plan approval, which he has done in this application. The revised
application provides a common bathroom for the use of the wing apartment residents, five
bedrooms, and three common rooms for use as living rooms, sitting rooms, or lounges by
the residents of that apartment, meeting the terms of the definition of dwelling unit for
which the former application was remanded. The Planning Commission was entitled to
consider this application on its merits, and, accordingly, Appellant’s motion for summary
judgment is DENIED as to Question 1 of the Statement of Questions.
In Question 2 of his Statement of Questions, Appellant argues that construction has
begun in violation of Condition 1 of the October 2006 Planning Commission decision,
which requires that all federal, state and local permits be obtained before development
commences. If construction has commenced and if other permits are required, the
municipality or any interested person is free to bring an enforcement action pursuant to 24
V.S.A. §4470(b). However, such an action must be filed by means of a complaint and
summons, and cannot be initiated as an issue in an appeal. V.R.E.C.P. 3(8). Therefore,
Appellant’s motion for summary judgment is also DENIED as to Question 2 of the
Statement of Questions, and that question is DISMISSED as beyond the scope of an appeal
from site plan approval.
As Appellants’ Statement of Questions does not raise any other issues challenging
the merits of the approval of the site plan, Appellee-Applicant’s motion for summary
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judgment is GRANTED; it is therefore ORDERED and ADJUDGED that the site plan as
approved by the Planning Commission is hereby APPROVED. This decision concludes this
appeal.
Done at Berlin, Vermont, this 21st day of May, 2007.
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Merideth Wright
Environmental Judge
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