STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Appeal of Jenness & Berrie } Docket No. 134‐7‐04 Vtec
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Decision and Order on Motion to Reinstate Trial Schedule and
Renewed Cross‐Motions for Summary Judgment
Appellant‐Applicants Frederick L. Jenness and David S. Berrie are represented by
Timothy J. O’Connor Jr., Esq. and Elana S. Baron, Esq.; the Town of Dummerston is
represented by Robert M. Fisher, Esq., and Interested Persons Judith and Raymond Enello
are represented by Walter G. French, Esq. The Court issued a decision on summary
judgment in July of 2006 that provided an opportunity for Appellant‐Applicants to move
to reinstate the trial regarding whether the parcel qualifies for consideration as a pre‐
existing undersized lot, §601, or whether it must be considered to have merged with
another parcel across Stickney Brook Road.
In their August 7, 2006 filing, Appellant‐Applicants presented the affidavit of Mr.
Silvio Forrett, who appears to have knowledge of the extent of use of Stickney Brook Road
as of the time that the Town adopted zoning in 1971. While this affidavit is not specific
enough, taken in conjunction with the Lucy affidavit presented by the other parties, to
allow the Court to rule in either party’s favor on summary judgment, enough information
was presented in the affidavit to raise a genuine issue of material fact for trial regarding the
extent and use of Stickney Brook Road. In particular, Mr. Forrett specifically referred to
traffic generated by construction and sale of homes in the so‐called “Jelly Mill Hill”
neighborhood, as well as traffic generated by the Jelly Mill itself, around the time the Town
adopted zoning. Mr. Forrett also referred to significant seasonal traffic to view waterfalls
in the area, around the time the Town adopted zoning. The relative locations of these
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features, and therefore whether this traffic did or did not affect the use of properties
adjoining the segment of road at issue in the present case, are disputed.
As the Town and Interested Persons renewed their joint motion for summary
judgment on the issue of the extent of the use of Stickney Brook Road in 1971, we must give
Appellant‐Applicants, the nonmoving party, the benefit of all reasonable doubts and
inferences in determining whether a genuine material fact exists. Merit Behavioral Care
Corp. v. State Independent Panel of Mental Health Providers, 2004 VT 12, ¶ 9. Viewed
from this perspective, Mr. Forrett’s affidavit demonstrates that the extent of the use of the
road in 1971 is a genuine issue of material fact that cannot be resolved on summary
judgment. Accordingly the renewed cross‐motion for summary judgment is DENIED.
Moreover, Vermont jurisprudence strongly favors the resolution of cases on their
merits, Desjarlais v. Gilman, 143 Vt. 154, 158‐9 (1983), whether through summary judgment
or after a necessary evidentiary hearing. Accordingly, the motion to reinstate this matter
for trial is GRANTED. Pursuant to our July 27, 2006 Decision and Order, on or before
October 10, 2006, Interested Persons and the Town shall submit by affidavit the costs to be
paid by Appellant‐Applicants in connection with the reinstatement, together with an order
approved as to form by all the parties, or, if any of the costs are contested, notice that the
evidentiary hearing will have to include evidence on those contested issues.
We anticipate that the time necessary for the trial will not exceed three hours; it has
been scheduled for October 23, 2006, beginning at 1:00 p.m., at the Windham Superior
Courthouse in Newfane. (See enclosed Notice of Hearing).
Done at Berlin, Vermont, this 20th day of September, 2006.
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Merideth Wright
Environmental Judge
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