Appeal of Foley

STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Foley, et al. }
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Docket No. 284-12-02
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Vtec
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Entry Order

Appellants Karen Foley, Johannes Swarts, Katherine Thibault, Andre
Thibault, John McCann, Donna McCann, Susan Bradford, Richard Peck,
and Donna Williams appealed from a decision of the Zoning Board of
Adjustment of the Village of Bradford granting conditional use approval
to Appellee-Applicant Peter J. Saladino, Jr. Appellants appeared and
represented themselves, with Ms. Foley acting as spokesperson;
Appellee-Applicant appeared and represented himself; and the Town
did not enter an appearance in this matter. An evidentiary hearing was
held in this matter before Merideth Wright, Environmental Judge; after
which Judge Wright took a site visit alone, by agreement of the
parties. The parties presented their arguments orally on the record at
the hearing. The Court issued its decision on August 11, 2003.

Ms. Foley has moved for reconsideration or for a new trial, in response
to footnote 1 of the August 11, 2003 decision. Her motion included
new factual information as to the fact that the new Zoning Bylaws
were proposed for public hearing prior to the date of Mr. Saladino= s
application, but did not state the date on which they were proposed,
and did not state the information in affidavit form. Mr. Saladino has
not responded to her motion. The time allowed by the rules to respond
to her motion, even if it were treated as a motion for summary
judgment, has now expired.

Under ' 5.8 of the Zoning Bylaws in effect in 2002 (the > old Zoning
Bylaws= ) a multi-family building as proposed in this application does
not require site plan approval; it only requires conditional use
approval. Under ' 6-12(a) of the new Zoning Bylaws it requires site
plan approval as well as conditional use approval.

The August 11, 2003 decision applied the old Zoning Bylaws to this
application, because evidence had not been presented as to when the
new Zoning Bylaws had been noticed for the first public hearing
pursuant to 24 V.S.A. ' 4404(a). The Court noted that, under 24 V.S.A.
' 4443(d)(as amended in 2001), an application must be considered
under any newly proposed bylaws if the application is filed during the
period of 150 days after the new bylaws have been proposed for public
hearing, even if the new bylaws had not yet been adopted. After that
time period (or if the bylaws are rejected), the application is to be
reviewed under the existing bylaws and ordinances.

Evidence was presented that Mr. Saladino= s application was filed on
September 25, 2002; that the ZBA ruled on his application on
November 6, 2002; and that the new Zoning Bylaws were adopted on
March 4, 2003. However, although Appellants argued at the hearing
that the new regulations should be applied, they did not present
evidence that the new Zoning Bylaws were proposed for the first public
hearing within the 150-day period prior to the filing date of the
application.

In the August 11, 2003 decision, the Court advised the parties that, if
the new zoning bylaws in fact had been noticed for public hearing
within the required period prior to September 25, 2002, the application
should have been considered under the new Zoning Bylaws. Not only
should the application on appeal have been considered by the ZBA for
conditional use approval under the new Zoning Bylaws, but it should
also have been considered for site plan approval by the Planning
Commission under ' 6-12, as the Village of Bradford does not have a
unified development review board.

If the new Zoning Bylaws were noticed for public hearing within the
150-day period, the Court still could not proceed to consider the
application under the site plan approval standards. The Court can only
sit in place of the board that issued the decision appealed from, to
consider the application that was the subject of that decision. If the
application must undergo site plan approval, it must be filed with and
heard by the Planning Commission for that purpose. Further, the Court
should not proceed to apply the new Zoning Bylaws; rather, the ZBA
should have the opportunity in the first instance to consider the
application under the new Zoning Bylaws.

If Appellants wish the Court to rule on the present motion, they must
file in affidavit form (probably as the affidavit of the Village Clerk or
other Village Official) the date on which the new Zoning Bylaws were
noticed for the first public hearing pursuant to 24 V.S.A. ' 4404(a). If
that date is less than 150 days prior to September 25, 2002, then the
application should have been considered also for site plan approval by
the Planning Commission and the ZBA should have applied the new
Zoning Bylaws in its consideration of conditional use approval. Further,
the ZBA and Planning Commission should have coordinated their
hearings on the application under ' 6-12(e) of the new Zoning Bylaws.

If no other documents are filed by any party within 15 days of the
filing of the affidavit, Appellant= s motion for reconsideration will be
granted, the August 11, 2003 order will be vacated, and the ZBA= s
decision under the old bylaws will be vacated and remanded for the
ZBA to consider the application under the new Zoning Bylaws, in
conjunction with the Planning Commission= s consideration of site plan
approval under ' 6-12 of the 2003 Zoning Bylaws.

If any responses are filed within 15 days after the filing of the
affidavit, the Court will rule on the pending motion in light of those
responses. Hearing time is available at the Courthouse in Chelsea in
the afternoon of November 14, 2003, if the date of the first public
hearing notice is contested by any party.

Dated at Barre, Vermont, this 26th day of September, 2003.

___________________
Merideth Wright
Environmental Judge