STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Appeal of }
Megan Price } Docket No. 202-10-99 Vtec
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Decision and Order on Pending Motions
Appellant Megan Price appealed from a decision of the Planning Commission of the
Town of Castleton granting site plan approval to Garry Bowen for construction of a
structure on a lot in the RR2A zoning district. Appellant has entered an appearance on her
own behalf and represents herself; Appellee-Applicant is now represented by John A.
Serafino, Esq. and Joseph Badgewick, Esq.; the Town of Castleton is represented by John
S. Liccardi, Esq.
The following motions remain pending: Appellant=s Motion to Compel, Appellee-Applicant=s
Motion to Dismiss and for Protective Order, and Appellant=s Motion to Amend her discovery
request.
Appellee-Applicant=s Motion to Dismiss
Appellee-Applicant has moved to Adismiss@ Appellant=s Statement of Questions to
the extent that they go beyond the considerations of site plan approval; we treat this motion
as one to strike the extraneous questions in the Statement of Questions.
The only matter before the Court is Appellant=s appeal of the decision of the
Planning Commission granting site plan approval to Appellee-Applicant. If any related
application for a zoning or building permit has been made to or issued by the Zoning
Administrator, such action has not been appealed to the Zoning Board of Adjustment or to
this Court, and is not before the Court in this appeal.
While the Court=s consideration of the appeal is de novo, and the Court is not bound
in any way by the action of the Planning Commission, the Court sits in place of the
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Planning Commission and has no more authority to act than did the Planning Commission.
All that the Planning Commission had before it was the application for site plan approval of
the structure described in the application.
Under '600 of the Zoning Ordinance pertaining to site plan review, Planning
Commission approval of a site plan is required, as a prerequisite to the issuance of a
zoning permit, for all uses except for one- and two-family dwellings and their
appurtenances. In performing site plan review, the Planning Commission, and hence this
Court, may only regulate and impose conditions with respect to the adequacy of traffic
access, circulation and parking, landscaping and screening, and the protection of
renewable energy resources. Only those issues are before the Court in the present
appeal.
If the use planned for this structure falls within the list of permitted uses in '320,
such as agriculture and forestry, or a home occupation, or an accessory use to one of the
permitted uses, then the Zoning Administrator may grant or deny the zoning permit and any
interested party may appeal the Zoning Administrator=s action to the Zoning Board of
Adjustment within the 15 days provided for such appeals in 24 V.S.A. '4464(a). If the use
planned for this structure falls within the list of conditional uses in '320, then the Zoning
Board of Adjustment must act on an application for conditional use approval. In either
instance, an appeal may be taken to this Court from an action of the Zoning Board of
Adjustment. If any such appeal is timely made, it may be consolidated for hearing with the
present appeal from the Planning Commission=s site plan approval, but at the present time
only the site plan issues are before the Court.
Accordingly, Appellee-Applicant=s Motion is GRANTED to strike the questions in the
Statement of Questions unrelated to site plan approval. It appears that at least Question 3,
relating to traffic access and circulation; Question 8, relating to landscaping and screening;
and Question 9, relating to access, fall within the criteria of site plan approval; the motion is
granted to strike the remainder of the Statement of Questions. However, as the Statement
of Questions is ten pages long and contains much text and argument as well as the
questions highlighted in boldfaced type, on or before October 10, 2000, Appellant may
move to amend her statement of questions. The Court treats a motion to amend the
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statement of questions by the standards applicable to a motion to amend a complaint
under V.R.C.P. 15.
Appellant=s Discovery Motions and Appellee-Applicant=s Motion for Protective Order
Appellant=s September 8, 2000 Motion to Amend her ARequest for Production and
Inspection of Documents@ is unnecessary, and will not be acted upon by the Court in the
present form. V.R.C.P. 26(b)(1), second paragraph. Under the ordinary rules of discovery,
the requests are made and exchanged between the parties or attorneys, and the Court
need not be applied to unless there is a dispute. We note that this amended request
strikes three of the former requests for discovery, adds two additional requests, and makes
some of the remaining requests more specific to the property at issue in this appeal.
Appellant=s July 12, 2000 Motion to Compel is therefore DENIED as MOOT. If Appellant
moves to amend her Statement of Questions, she may wish to further refine her discovery
request so that it is properly addressed to matters relevant to the site plan review, including
information reasonably calculated to lead to the discovery of admissible evidence.
V.R.C.P. 26(b)(1), first paragraph.
Appellee-Applicant=s Motion for Protective Order is DENIED for two reasons. Most
importantly, the ordinary civil discovery rules do apply to zoning and planning appeals in
Environmental Court. V.R.C.P. 76(a)(2). The limitations on discovery in Environmental
Court only apply to proceedings under 10 V.S.A. Chapter 201. V.R.C.P. 76(a)(3).
Secondly, Appellant has already revised her discovery request to limit the excessive scope
of some of the questions, and may further amend it because Appellant=s Statement of
Questions has been limited by the Court in the present order. To avoid unnecessary
motions on the part of the parties, and unnecessary rulings by the Court, leave is hereby
give to Appellee-Applicant to file a renewed Motion for Protective Order if necessary after
receiving Appellant=s amended Statement of Questions and renewed discovery request, or
after October 10, 2000 if no motion to amend the Statement of Questions is filed.
Done at Barre, Vermont, this 28th day of September, 2000.
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_________________________________________________
Merideth Wright
Environmental Judge
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