Agenda - Planning Commission - 04/07/2016

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March 25, 2016 Volume 10 Issue 6 Zoning Bulletin cision within 45 days, the application "shall be deemed approved and shall be effective on the 46th day." (24 V.S.A. § 4464(b)(1).) Here, Brisson and the Town disputed which date marked the formal adjournment of the hearing and the beginning of the 45 day period. Brisson contended that the DRB had failed to properly continue the public hearings on the application until January 22, 2013, and the Town disagreed. The date offered by Brisson would have triggered the deemed -approval remedy, while the date provided by the Town would have precluded deemed -approval. In a separate appeal, Brisson also sought review of the DRB's denial of the application. In that second proceeding, Claudia Orlandi ("Orlandi"), an adjoining landowner, was granted intervenor status and cross -appealed. Orlandi argued that, as a matter of law, Brisson' s proposed project was not a permitted use because § 564 of the Town's zoning regulations only allowed gravel extraction and not blasting, • drilling, and crushing ledge rock. In the first appeal, the court held that the application could not be deemed approved. The court agreed with the Town's date as to the start of the 45 day period. In the second appeal, the court agreed with Orlandi; it found no material issue of fact in dispute and decided the matter on the law alone, holding that § 564 did not authorize crush- ing quarried ledge rock to create gravel, and that therefore the DRB properly denied Brisson a permit. Brisson appealed both decisions. DECISION: Judgment of Superior Court,, Environmental Division, affirmed. The Supreme Court of Vermont first held, on the merits, that the DRB properly denied Brisson' s application. Analyzing the plain meaning of the language of § 564, the court found that the language supported a "distinction between naturally occurring gravel and gravel created using [Brisson' s] proposed method." The court found that § 564 was intended to regulate operations that extract naturally occurring gravel, not operations that create gravel by drilling, blast- ing, and crushing quarried rock. Addressing the "deemed approved" issue, the court also held that even if the application was deemed approved, the deemed approval remedy would not foreclose an interested patty's timely appeal to the Environmental Division on the permit's merits. In this case, the court found that Orlandi had filed a timely cross -appeal and motion for summary judgment on the merits in the Environmental Division. "As a result, even if [Brisson' s] request for a deemed -approved permit had legs, the Environmental Division would still have jurisdiction to address [Orlandi's] cross -appeal on the merits." In other words, 10 ©2016 Thomson Reuters