Lavalette CU Application
| Citation | 2023 Vt Super 111501 |
| Docket Number | 23-ENV-00011 |
| Decision Date | 15 November 2023 |
| Parties | Lavalette CU Application |
| Court | Superior Court of Vermont |
ENTRY REGARDING MOTIONS
Title Motion for Summary Judgment (Motion #5)
Filer Brian P. Monaghan, Attorney for Town of Hinesburg
Response to Motions, filed by Appellants Andrea and Allen Lavalette on September 6, 2023.
Reply Memorandum in support of Motion for Summary Judgment, filed by Brian P. Monaghan, Attorney for Town of Hinesburg on September 19, 2023.
Additional Response, filed by Appellants Andrea and Allen Lavalette on September 28, 2023.
The motion is DENIED IN PART and GRANTED IN PART.
Title Motion to Dismiss (Motions #1-4, 6-8)
Filers Peter Modley, Michael Patterson, Kristin Dykstra, Brian Collier, Charles Abry, Natasha Duarte, Joyce Boyer, and Robert Linck
Filed Date: August 16-18, 2023.
Response to Motions, filed by Appellants Andrea and Allen Lavalette on September 6, 2023.
The motions are DENIED.
This is an appeal of a decision by the Town of Hinesburg Development Review Board ("DRB") denying Andrea and Allen Lavalette ("Applicants") a conditional use permit to operate a commercial cordwood operation on their property located at 126 Beaver Pond Road in Hinesburg, Vermont ("the Property"). Presently before the Court is the Town's motion for summary judgment, as well as seven separate motions to dismiss filed by Charles Abry, Joyce and Roger Boyer, Brian Collier, Natasha Duarte, Kristin Dykstra Robert Linck, Peter Modley, and Michael Patterson (together, "Neighbors").
In this appeal, Attorney Brian Monaghan represents the Town of Hinesburg ("the Town"). Applicants and Neighbors are each self-represented.
To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5(a)(2). When considering a motion for summary judgment, the nonmoving party receives the benefit of all reasonable doubts and inferences, here Applicants. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. In determining whether there is any dispute over a material fact, "we accept as true allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." White v. Quechee Lakes Landowners' Ass'n, Inc., 170 Vt. 25, 28 (1999) (citation omitted); V.R.C.P. 56(c)(1)(A).
We recite the following factual background and procedural history, which we understand to be undisputed unless otherwise noted, based on the record now before us and for the purpose of deciding the pending motion. The following are not specific factual findings relevant outside the scope of this decision on the pending motion. See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14 (citing Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633 (2000) (mem.)).
1. Applicants own and reside at 126 Beaver Pond Road in Hinesburg, Vermont (previously defined as "the Property").
2. The Property is in the Rural Residential Zoning District #2 ("RR2") as defined by the Town of Hinesburg Zoning Regulations ("HZR").
3. Commercial cordwood operation is a conditional use in the RR2 District. Town Ex. 1 (HZR) at § 3.4.3(16).
4. Properties within the RR2 District cannot have more than one principal use without additional permitting. HZR § 2.5.5.
5. Applicants previously operated an unpermitted commercial cordwood operation on the Property.
6. The Town issued notices of violation in June and July 2021 for this activity, and later filed an enforcement action in this Court in May 2022.
7. The enforcement action reached resolution through a settlement agreement, which required Applicants to apply for and receive conditional use approval before conducting further cordwood operations at the Property.
8. On or about October 21, 2022, Applicants applied for a conditional use permit to operate a commercial cordwood operation pursuant to HZR § 3.4.3(16). Lavalette Conditional Use Application, filed November 7, 2023 ( that "This application is for a commercial cordwood operation, which is listed as a conditional use in the Hinesburg Zoning Regulations for the RR2 zoning district (Section 3.4.3)").[1]
9. The proposed cordwood operation would occur outdoors.
10. Rather than review the application under general conditional use standards, the DRB reviewed the application as one for a conditional use home occupation under HZR § 5.1.2. Town Ex. 2 (DRB Decision).[2]
11. The DRB's decision explained that Applicants could not apply for conditional use review under HZR §§ 3.4.3(16) and 4.2.2 () because properties in the RR2 cannot have two principal uses. Id. at 1 ().
12. The DRB reasoned that Applicants' residence was an existing principal use and that a cordwood operation would be an impermissible second principal use.
13. The DRB then applied the standards applicable to home occupations and denied the application for failure to conform with the home occupation performance standards and conditional use criteria in HZR §§ 4.2.2, 5.1.3, and 5.12. Id. at 5.
In the Environmental Division, the Statement of Questions provides notice to other parties and this Court of the issues to be determined within the case and limits the scope of the appeal. In re Conlon CU Permit, No. 2-1-12 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Aug. 30, 2012) (Durkin, J.). As filed, Applicants' revised Statement of Questions presents the following questions for the Court's review:
Applicants' Second Revised Statement of Questions, filed June 5, 2023.
The Town argues that HZR § 2.5.5 precludes the proposed cordwood operation from receiving conditional use approval under HZR §§ 3.4.3(16) () and 4.2.2 (conditional use review standards). Essentially, the Town argues that conditional use review cannot be used to allow a second principal use on a property in the RR2 district. HZR § 2.5.5 provides that:
It shall be unlawful to locate more than one principal building or principal use on a parcel of land in the Rural Residential... 2. district[] which is not in separate ownership or which has not received all local subdivision, zoning and/or other permits so that it could be separately owned or leased.
The Town's motion assumes that the proposed cordwood operation is a second principal use on the Property, but fails to provide any factual or legal support for that assertion. In response, Applicants provided the Court with definitions of incidental or subordinate use, which we interpret as disputing whether the proposed project is a principal use. The HZRs do not define the term "principal use." Neither party cites any legal authority to guide the Court's interpretation of the term as applied to the proposed project.
As the moving party, the Town has the burden of proving that there is no genuine dispute of material fact. Travelers Ins. Cos. V. Demarle, Inc. USA, 2005 VT 53, ¶ 3, 178 Vt. 580. Further, we are required to provide the nonmoving party, here Applicants, the benefits of all reasonable doubts and inferences. Stamp Tech, Inc. ex rel. Blair v. Ludall/Thermal Acoustical, Inc., 2009 VT 91, ¶ 31, 186 Vt. 369. From the facts presently before us, we must conclude that the Town did not meet its burden of demonstrating that there is no genuine dispute of material fact with respect to the allegation that Applicants' cord wood project constitutes a second principal use of the Property. We therefore DENY the Town's motion for summary judgment on this threshold issue.
Applicants' Questions 1, 2, 3, and 5 ask whether the proposed project meets the home occupation conditional use and performance standards set forth in HZR §§ 5.1.2 and 5.1.3. The Town argues that the proposed project cannot meet the definition of a home occupation because the cord wood operation occurs outside. We agree.
In interpreting zoning ordinances, the Court applies the rules of statutory construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. First, the Court "construe[s] words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance." Id. If there is no plain meaning we will "attempt to...
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