Saxon Hill Sand Extraction ( 2014 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 42-3-11 Vtec
Saxon Hill Corp. Sand Extraction
Application
DECISION ON MOTION
Saxon Hill Corporation (“Applicant”) seeks to establish a sand extraction operation on
approximately 54 acres of land in the Town of Essex, Vermont (“the Town”).1 Applicant applied
for a permit with the Town of Essex Planning Commission (“the Commission”) as required by
the applicable provisions of the Town of Essex Zoning Regulations (“Regulations”). The
Commission denied the application in a written decision dated February 24, 2011. Applicant
timely appealed the denial of its application. On October 27, 2011 Applicant filed the pending
motion for summary judgment. The parties agreed to extend the deadline for the Town’s
response to that motion while Applicant and the Town engaged in mediation and other efforts
to resolve the matter outside of this court proceeding. Due to the nature of the issues and the
complicated processes required for a mutually agreeable resolution, the parties filed a
stipulated motion to place this appeal on inactive status while they attempted to resolve the
matter. The Court granted that motion on October 2, 2012. Now, those efforts at resolution
having been unsuccessful, the Town has responded to the motion for summary judgment and
Applicant has replied to that response. Based upon the parties’ representations, we now return
this appeal to active status and render the following determinations on the pending summary
judgment motion.
Factual Background
For the sole purpose of putting the pending motion into context, the Court recites the
following facts which it understands to be undisputed unless otherwise noted:
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The parties have not yet provided details concerning the proposed sand extraction operation, including its
relation to an already-existing extraction operation located on Applicant’s property. Given that the legal issue
presented for our review concerns Applicant’s challenge to the constitutionality of the applicable ordinance
provisions, we do not need a detailed explanation of the proposed development at this time.
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1. In 1977 the Town of Essex, Vermont established a unique zoning district, the Resource
Preservation District–Industrial (“RPD-I”), to govern development on an approximately 750 acre
parcel including an area known as Saxon Hill. The area contains many natural resources and the
RPD-I was established with the stated objective to ensure protection of those resources
through conservation and recreation uses while allowing a portion of the 750± acres to be
developed for industrial purposes.
2. In 1978, Forestdale Heights, Inc. acquired the 750± acre parcel from the Village of Essex
Junction.
3. As a required by a condition of the Village’s conveyance, Forestdale Heights conveyed
approximately 90 acres to the Essex Junction School District.
4. Forestdale Heights, Inc. subsequently conveyed its land to Saxon Hill Corporation.
5. Hector LeClaire is the president of Saxon Hill Corporation and was a principal
shareholder of Forestdale Heights, Inc.
6. The 1977 Regulations for the RPD-I allowed 25% of the parcel be used for industrial
purposes, 60% to be used only for conservation/recreation uses, and the remaining 15% to be
used as conservation/recreation with the contemplation that this 15% could be put towards
industrial uses in the future. All decisions regarding land use applications in the RPD-I are to be
made by the Town of Essex Planning Commission.
7. In 1978, the Planning Commission approved a conceptual map indicating the areas of
land that could be used for industrial purposes and those areas that were to be used only for
conservation/recreation.
8. The Planning Commission updated this conceptual map on November 8, 2001 after
multiple hearings in which Forestdale Heights, Inc. participated. This new map, entitled the
“Forestdale Technology Park Official 60/25/15 (60/40) Map,” designated the additional 15%
described in the 1977 Regulations for industrial use, resulting in 60% being designated for
recreation/conservation uses and 40% designated for industrial uses.
9. The specific facts of Applicant’s proposed development are not before us. The Town
points out in its response to Applicant’s statement of facts that the proposed sand extraction
operation is entirely within the area currently designated as being for recreation/conservation
use only. It is that proposed location, and Applicant’s constitutional challenge, that present the
legal issues before us in this appeal.
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Discussion
In the present motion for partial summary judgment, Applicant asks the Court to hold
that the regulatory provisions of the Town of Essex Zoning Regulations related to the Resource
Preservation Industrial District are unconstitutionally vague and should therefore be declared
void by this Court. While a ruling on the application before us requires further facts, the
question of whether the Regulations that apply to the application are constitutional is a legal
question appropriate for summary judgment and ripe for our review.
I. Summary Judgment Standard
A moving party is entitled to summary judgment upon showing 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); V.R.E.C.P. 5(a)(2). We must “accept as true the [factual] allegations made in
opposition to the motion for summary judgment” and give the non-moving party (here, the
Town) the benefit of all reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004
VT 15, ¶ 15, 176 Vt. 356 (internal citations omitted); V.R.C.P. 56(c) (laying out summary
judgment procedures). Both the party claiming that a material fact is undisputed and the party
seeking to establish a dispute of material fact must support their assertions with citations to
materials in the record. V.R.C.P. 56(c)(1).
II. Standard of Review
When reviewing a municipal land use decision, we begin with the presumption that a
zoning regulation is constitutional. In re Highlands Development Co., LLC, No. 194-10-03 Vtec,
slip op. at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (citing Hunter v. State, 2004 VT 108, ¶ 31,
177 Vt. 339). A zoning regulation may, however, be held to be unconstitutionally vague if it
fails to set forth any “guiding standards” to limit the discretion of the municipal panel. Town of
Westford v. Kilburn, 131 Vt. 120, 125 (1973). While it is necessary that the municipal panel
exercise some discretion, a balance must be struck between flexibility and a landowner’s right
to know what standards govern her application. See id. (“On one hand the standards governing
the delegation of such authority should be general enough to avoid inflexible results, yet on the
other hand they should not leave the door open to unbridled discrimination.”). In considering
whether a regulatory provision has sufficient guiding standards, we “look to the entire
ordinance, not just the challenged subsection, to determine the standard to be applied.” In re
Pierce Subdivision Application, 2008 VT 100, ¶ 20, 184 Vt. 365. To be constitutional, a
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regulation must allow the decision maker to perform two functions in reviewing applications:
"First, the regulatory provision must be specific enough to allow the decisionmaker clearly to
identify the resources or features to be protected,” and “[s]econd, the regulation must also
provide standards by which the decisionmaker can discern the degree or level of protection
that must be achieved for each identified resource or feature.” Highlands Development Co.,
LLC, No. 194-10-03 Vtec, slip op. at 15.
We interpret a zoning ordinance using the familiar rules of statutory construction. In re
Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. We will “construe words according to their
plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” Id.Where the plain meaning of the ordinance is clear, it must be enforced and no further
interpretation is necessary. Vermont Alliance of Nonprofit Orgs. v. City of Burlington, 2004 VT
57, ¶ 6, 177 Vt. 47 (citing Hill v. Conway, 143 Vt. 91, 93 (1983)). In construing statutory or
ordinance language, our “paramount goal” is to implement the intent of its drafters. Colwell v.
Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. We will therefore “adopt a construction that
implements the ordinance's legislative purpose and, in any event, will apply common sense.” In
re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotations omitted).
III. Resource Preservation – Industrial District (RPD-I) Regulations2
As noted above, the Regulations at issue were adopted to deal with a single large parcel
of land. Regulations Table 2.143 governs all applications for development within the Resource
Preservation – Industrial District. Because we are directed to consider the entire ordinance, we
must look at the Regulations applicable to the RPD-I as a whole.
The stated intent of the RPD-I is twofold. The first is “[t]o ensure the purposes of this
district are carried out.” The second stated intent is “[t]o provide flexibility, at the discretion of
the Planning Commission, for accommodating special or unique projects deemed to benefit the
Town that might not typically be permitted or conditionally permitted under other sections of
these Regulations administered by the Zoning Administrator or the Board of Adjustment.”
Section (A) of Table 2.14 defines the purpose of the district. It states:
2
The original name of the zoning district was “Resource Preservation District – Industrial” and was given the
acronym RPD-I. The current Regulations title the district “Resource Preservation – Industrial District” but maintain
the acronym (RPD-I).
3
Although titled “Table 2.14” this portion of the Regulations are presented as a list of sections and subsections
and not as an actual table.
4
The PRD-I District is established for land that is comprised of forests, bodies of
water, high elevations, scenic overlooks, or similar natural settings. The RPD-I
District acreage in combination with the 90-acre parcel zoned O1 (presently
owned by the Essex Junction School District) totals 751.7 acres. The objective of
the RPD-I and the related O1 District parcel is to protect all or part of such
natural attributes for public enjoyment, and, when deemed economically and
aesthetically feasible, to carry out development activities in harmony with the
natural surroundings. Of the 751.7 acres in this district, 60% has been formally
designated for recreation/conservation use (including all of the related O1
District acreage) and the remaining 40% for industrial and office uses that satisfy
all other district requirements. Residential uses are not allowed in this district.
Thus, this purpose statement evidences part of the stated intent for the RPD-I.
Section (B) of Table 2.14 discusses the authority of the Planning Commission in
reviewing applications for development within the RPD-I. It states: “The Planning Commission
is hereby given the authority to approve original development and alterations, amendments,
additions to, and variations from the original conceptual plan, approved on May 11, 1978, and
as updated on the Forestdale Technology Park Official 60/25/15 (60/40) Map, approved
November 8, 2001.” Subsection (B)(1) notes that “all proposals for subdivision and
development in the RPD-I District shall be reviewed only under the provisions for this District.
Applicant’s may not rely upon, nor seek remedy under any other provisions of these
Regulations, except as may be provided by state law.” Subsection (B)(2) states that “[s]ite plan
approval by the Planning Commission, in accordance with Section 5.6 of these Regulations, shall
be required prior to the development of individual parcels or sites within the RPD-I District,
incorporating the intent of this district. The Planning Commission may refuse development or
modification as proposed if it determines that the intent of this district has not been met.”
Regulations Table 2.14(B)(2) (emphasis added). Thus, conformance with the purpose stated in
section (A) of Table 2.14 is a requirement for Planning Commission approval of a development
application within the RPD-I.
Section (C) of Table 2.14 governs “Allowed Uses” in the RPD-I. It states that the
discretionary authority granted in Section (B) “is continued for all uses not listed as permitted
uses.” It goes on to clarify:
This means that the Planning Commission, in conjunction with site plan review,
may allow a special or unique project or use deemed to benefit the town that
might not typically be permitted under other sections of these Regulations in
accordance with the following:
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(1) Permitted Uses. Permitted uses in this district include professional offices, light
manufacturing, financial institutions, educational facilities, recreation/
conservation uses, and accessory uses.
(2) Mixed Production & Sales Areas. In any manufacturing use allowed in this district, an
area inside the structure not exceeding one thousand square feet (1,000 SF) may be set
aside for the purpose of retail sales of the products manufactured by the resident
company, provided that all relevant dimensional requirements for the district are met
and that all parking requirements specified in Section 3.9 of these Regulations are met.
(3) Commercial Support Services. To stimulate industrial development, the Planning
Commission may permit limited commercial support services that are operated
primarily for employees of the RPD-I District such as, but not limited to, banks,
restaurants, small-scale offices, recreation/health spas, etc. The specific area identified
as being suitable for such uses is the approximately 12-acre parcel on the southwest
corner of Thompson Drive. Such development shall be subject to all applicable district
requirements.
(4) Office Facilities. Office buildings which exceed four thousand square feet (4,000 SF)
including, but not limited to, corporate offices, research and development facilities,
laboratories, industrial support offices, etc., may be permitted by the Planning
Commission within the industrial portion of the RPD-I District subject to all district
requirements.
Regulations Table 2.14(C) (emphasis added).
Finally, Section (D) of Table 2.14 lays out the “District Development Standards.”
Subsection (D)(1) states:
Development plans for the RPD-I District have been submitted for the RPD-I in its
entirety (751.7 acres) and all land features therein. At least sixty percent (60%)
of land shown on the Official Forestdale Technology Park 60/25/15 (60/40) Map
(effective November 8, 2001) shall be retained for recreation/conservation use,
including the related O1 acreage presently owned by the Essex Junction School
District. Industrial and office uses which satisfy all other requirements of this
Section shall be permitted in the remaining forty percent (40%) of the land
shown on this map.
(a) In association with site plan review, the Planning Commission may entertain and
approve modification to district development plans as necessary to attract
individual industrial users but in doing so shall not alter or modify the district
allocation of recreation and conservation land.
Subsections (2)–(4) relate to height of structures, lot coverage, and buffers, which undisputedly
contain specific standards not relevant to the present appeal.
IV. Whether the RPD-I Regulations Contain Enforceable Standards
Applicant argues that “[t]his zoning scheme with a complete lack of standards gives the
Planning Commission complete, unfettered and standardless discretion to either approve or
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deny development however they see fit.” (Applicants Mot. for Partial Summ. J. at 4, filed Oct.
27, 2011). In doing so Applicant argues three points. First, Applicant argues that the intent and
purpose provisions of the RPD-I do not provide sufficient standards and are therefore
unenforceable. Second, it argues that the Planning Commission has discretion to approve any
use within the RPD-I (except residential uses) and there are no standards guiding a decision as
to what use can be permitted. Finally, it argues that the Town Plan provisions at issue, made
applicable as part of site plan review, are unenforceable. While Applicant focuses on several of
the RPD-I’s many sentences, we must consider the Regulations as a whole. In re Pierce
Subdivision Application, 2008 VT 100, ¶ 20, 184 Vt. 365.
A. The Official Forestdale Technology Park 60/25/15 (60/40) Map
In response to the three arguments put forward by Applicant, the Town argues that this
Court need not determine the constitutionality of the Regulations challenged by Applicant
because the proposed development is located within the 60% of the RPD-I formally designated
as only for conservation and recreation uses on the Official Forestdale Technology Park
60/25/15 (60/40) Map (effective November 8, 2001). Without amending the map, this is
undisputedly a sufficient standard on which the application could be denied and therefore, the
Town argues, the Court should avoid the constitutional challenges. Applicant argues that
because the Planning Commission has authority to alter, amend, or modify the 60/40 map, and
that authority is not limited by any standards, the portion of the RPD-I which Applicant seeks to
develop may be considered part of the 40% in which industrial development is permitted.
Here, the undisputed facts are insufficient for the Court to determine what portion of
the RPD-I is limited to conservation/recreation uses and whether Applicant seeks to develop
within that area. The Regulations themselves appear to indicate that development has already
occurred on 40% of the RPD-I. It also appears from the facts before us that Applicant
participated in the process of amending the map and that process led to a formal decision of
the Planning Commission. Thus, it is not entirely clear to what extent Applicant can now
challenge that revised designation or whether a further map amendment is possible in
compliance with the Regulations. Assuming, however, that the Planning Commission could
amend the map to designate the area Applicant seeks to develop as part of the 40% portion of
the District designated for industrial development, we consider whether the Regulations
governing applications for development in that area are constitutional.
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B. The Intent and Purpose Statements in the RPD-I
We first consider whether the Regulations are “specific enough to allow the decision
maker clearly to identify the resources or features to be protected . . . .” Highlands
Development Co., LLC, No. 194-10-03 Vtec, slip op. at 15. The purpose section clearly identifies
the features and resources in the RPD-I that the Regulations seek to protect. The RPD-I seeks to
protect the forests, bodies of water, and other natural resources that exist on this unique
parcel of land while allowing for industrial and related development on not more than 40% of
the entire parcel. Regulations Table 2.14(A). This section also notes that “[o]f the 751.7 acres
in this district, 60% has been formally designated for recreation/conservation use . . . and the
remaining 40% for industrial and office uses that satisfy all other district requirements.” Id.This formal designation is on the duly adopted Forestdale Technology Park Official 60/25/15
(60/40) Map. This map provides even more clarity as to what resources are to be protected
and where. The RPD-I is therefore specific enough for both the applicant and the decision
maker to identify the resources and features to be protected.
Second, we consider whether the RPD-I Regulations “provide standards by which the
decision maker can discern the degree or level of protection that must be achieved for each
identified resource or feature.” Highlands Development Co., LLC, No. 194-10-03 Vtec, slip op. at
15. Regarding Applicant’s first argument, we conclude that the intent and purpose provisions
of the RPD-I contain sufficient standards for the Planning Commission to determine the degree
or level of protection.
Within the 60% of the RPD-I formally designated for conservation/recreation uses, and
the location of that area designated on the map, the level of protection is clear: the resources
in that area are fully protected and no development is allowed. Instead, only conservation and
recreation uses are allowed. There are also discernible standards within the remaining 40% of
the RPD-I. Table 2.14 section (A) states that the purpose of the district is “is to protect all or
part of such natural attributes for public enjoyment, and, when deemed economically and
aesthetically feasible, to carry out development activities in harmony with the natural
surroundings.” Table 2.14(B)(2) makes this purpose a standard governing applications for
development within the RPD-I.
Applicant argues that “[n]o one—not the landowner, not the Planning Commission, and
not the Court—can possibly know [what this standard means] because Table 2.14 does not
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say.” (Applicant’s Mot. for Partial Summ. J. at 9, filed Oct. 27, 2011). Despite the fact that the
Regulations do not define “economic or aesthetic feasibility” or “harmony with the natural
surroundings,” the Planning Commission and this Court can apply these standards using the
plain and ordinary meaning of the words chosen by the drafters.
Within the context of interpreting a town plan provision under Act 250 Criterion 10
(which requires a showing of conformance with any duly adopted town or regional plan), the
Vermont Supreme Court held that the Royalton Town Plan requirement that commercial
development be located within or close to the two village centers “where feasible” was too
ambiguous to be enforced through Criterion 10. In re Times & Seasons, LLC, 2008 VT 7, ¶¶ 21–
23, 183 Vt. 336. The Supreme Court stated “[e]ven if we give the words ‘where feasible’ their
plain and ordinary meaning, it remains unclear.” Id. at ¶ 23. The Time and Seasons Court
noted that it was left to wonder “if the drafters . . . intended this phrase to refer to economic
feasibility, physical feasibility, some combination of both, or perhaps some other measure of
feasibility altogether.” Id.
Here, the RPD-I Regulations state that development may only be approved where
economically and aesthetically feasible. Within the scope of economic and aesthetic feasibility,
we look to a commonly relied-upon definition for “feasible”: “[c]apable of being done,
executed, affected or accomplished. Reasonable assurance of success.” Black’s Law Dictionary
549 (5th ed. 1979).4 Thus, a development will be aesthetically feasible if it will have a
reasonable assurance of aesthetic compliance. In other words, a proposed development is not
aesthetically feasible if it will have an unreasonable adverse effect on the aesthetics of the area.
With the guidance provided by Act 250 case law, which notes that a determination of whether
a proposed project will have an adverse aesthetic impact is followed by a determination of
whether that impact would be undue, we conclude that this term (“aesthetic feasibility”)
provides a sufficient guiding standard. See Times & Seasons, 2011 VT 7, ¶ 8 (citations omitted)
(noting that in determining whether a project complies with Act 250 Criterion 8 one first
“determines if the proposed project will have an adverse aesthetic impact” and second
“whether that the adverse impact would be undue”). An adverse aesthetic impact will be
undue if “the applicant [has] failed to take generally available mitigating steps that a reasonable
4
The most recent edition of Black’s Law Dictionary does not define “feasible” but does define “feasibility
standard” as: “The requirement that, to obtain bankruptcy-court approval, a Chapter 11 reorganization plan must
be workable and have a reasonable likelihood of success.” (9th ed. 2009) (emphasis added).
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person would take to improve the harmony of the proposed projects with its surroundings.” Id.Thus, the RPD-I requirements that proposed development be “economically and aesthetically
feasible” and “in harmony with its surroundings” provide standards such that the Planning
Commission is not given complete and unbridled discretion it could exercise in a discriminatory
way.
C. Uses Allowed in the RPD-I
Regarding Applicant’s second argument, that there are no standards governing what
uses may be allowed in the RPD-I, we conclude that the plain language of the Regulations do
set standards for determining what uses are allowed.
Within the 60% portion of the district formally designated as recreation/conservation,
only those two use categories are allowed. The Regulations directly state that “[d]evelopment
plans for the RPD-I District have been submitted for the RPD-I in its entirety (751.7 acres) and
all land features therein. At least sixty percent (60%) of land shown on the Official Forestdale
Technology Park 60/25/15 (60/40) Map (effective November 8, 2001) shall be retained for
recreation/conservation use . . . .” Regulations Table 2.14(D)(1) (emphasis added). While it
notes that “the Planning Commission may entertain and approve modifications to district
development plans as necessary to attract individual industrial users” it states that in doing so
the Planning Commission “shall not alter or modify the district allocation of recreation and
conservation land.” Id. (emphasis added). The level of protection for the area designated as
recreation/conservation land is therefore clear: recreation and conservation uses are permitted
as of right, all other uses are prohibited.
Within the 40% designated as for industrial uses, it is clear that the drafters of the
Regulations intended to give the Planning Commission a measure of discretion in allowing
various types of development. Like the designation for recreation/conservation, there is not a
complete lack of standards such that the Planning Commission has unfettered discretion.
Section (C) of Table 2.14 sets out standards for what uses are allowed within the RPD-I. By its
plain language, it does not, as Applicant argues, allow for the Planning Commission to approve
any use. In so arguing, Applicant points to the “Summary Use Chart” at Table 2.1 of the
Regulations. This chart lays out what uses are permitted in other districts, but for the RPD-I, a
footnote explains that the reader must See “RPD-I District for Further Use Provisions.”
Regulations Table 2.1. Furthermore, the RPD-I Regulations explicitly state that “all proposals
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for subdivision and development in the RPD-I District shall be reviewed only under the
provisions for this District. Applicant’s may not rely upon, nor seek remedy under any other
provisions of these Regulations, except as may be provided by state law.” Regulations Table
2.14(B)(1)(emphasis added). Thus, under the plain language of the Regulations, only those uses
described in Table 2.14(C) are permitted within the 40% of the RPD-I designated for industrial
development.
Table 2.14(C)(1) states that for the entire RPD-I, permitted uses within the designated
areas are professional offices, light manufacturing, financial institutions, educational facilities,
recreation/conservation uses, and accessory uses. Retail sales are also permitted within a
1,000 square foot portion of a manufacturing use, thereby allowing for the sale of the products
manufactured on site, provided dimensional and parking requirements are met. Id.Commercial support services such as, but not limited to, banks, restaurants, small-scale offices,
recreation/health spas, etc. are conditionally permitted within a designated 12-acre subsection
of the district. Also conditionally permitted are office buildings exceeding 4,000 square feet.
While Applicant focuses on the broad language allowing the Planning Commission to allow “a
special or unique project or use deemed to benefit the town that might not typically be
permitted under other sections of these Regulations,” it is clear that the Planning Commission
may only do so “in accordance with” the specific provisions in Table 2.14(C)(1)–(4). Thus, we
conclude that the use provisions provide sufficient standards to guide the Planning Commission
and are therefore not unconstitutionally vague.
D. Conformance with the Essex Town Plan
Finally, we address Applicant’s constitutional challenge to the applicable provisions of
the Town of Essex Town Plan (“Town Plan”). Table 2.14(B)(2) requires that any proposed
development seeking approval within the District also secure site plan approval under
Regulations § 5.6. Within that subsection, the Regulations provide “General Requirements,”
including a requirement that the proposed development “[c]onform[] with the duly adopted
Essex Town Plan.” Regulations § 5.6(A)(1). Applicant asserts that this requirement also fails to
pass constitutional muster for lack of sufficient standards.
Section 7.4 of the Town Plan discusses “Natural Areas in Essex” and has a section
specifically related to Saxon Hill Forest. First, this section describes some of the important
natural resources located within the Saxon Hill Forest, including “four reservoir areas, 12 miles
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of cross-country ski trails, numerous species of wild flowers and a proliferation of red, scotch
and white pine trees.” It then recognizes that apart from the 90 acres now owned by the Essex
Junction School District, the Saxon Hill Forest was predominantly owned by Applicants
predecessor in interest, Forestdale Heights, Inc. The Plan then states:
Protection of the trees is perhaps the primary means of preserving the amenities
which the Forest offers. The trees enhance the recreational value of the trails
and significantly contribute to the aesthetics of the area. Proper forest
management techniques need to include harvesting for long-term forest growth.
For these reasons, development within the forest should continue to consist of
broad belts of trees and large contiguous blocks of forest. In addition, air
pollutants for certain industrial processes which might be harmful to tree species
should be restricted or prohibited.
Town Plan at 7–8. Applicant argues that this section does not provide sufficient standards and
therefore cannot be applied through the Regulations.
While similar, the legal standard for conformance with a town or municipal plan is
different from the standards governing whether the more specific implementations of those
plans, the applicable zoning regulations, pass constitutional muster. As the former
Environmental Board has noted “[m]ost town plans and regional plans are not written like
zoning bylaws. They frequently do not contain words such as ‘prohibited’ or phrases such as
‘shall not be allowed.’ But this does not mean that they are legally meaningless.” Re: Mclean
Enters. Corp., No 2S1147-1-EB, at 80 (Vt. Envtl. Bd. Nov. 24, 2004) (citations omitted); see also
In re Union Bank Jeffersonville, No. 7-1-12 Vtec, slip op. at 4–5 (Vt. Super. Ct. Envtl. Div. Oct. 30,
2013) (Durkin, J.) (discussing legal standard for Act 250 Criterion 10). Municipalities may
include conformance with a town or regional plan as a requirement for site plan or conditional
use approval. See e.g., In re Group Five Invs. CU Permit, 2014 VT 19, ¶ 16, available at
http://info.libraries.vermont.gov/supct/current/op2013-009.html (considering conformance
with town plan in municipal permit appeal). When this is the case, only those plan provisions
that set forth a “specific policy” and are “stated in language that is clear and unqualified, and
creates no ambiguity” will be regarded as regulatory instead of aspirational and can therefore
be enforceable against an applicant. See In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt.
520 (citations omitted) (internal quotation marks omitted) (“Broad policy statements phrased
as nonregulatory abstractions . . . may not be given the legal force of zoning laws . . . .”).
We conclude that the requirements that “[p]roper forest management techniques need
to include harvesting for long-term forest growth” and “development within the forest should
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continue to consist of broad belts of trees and large contiguous blocks of forest” are not broad
policy statements or regulatory abstractions, but specific and concrete policies. As such,
depending on the facts of the case, they may be enforceable against an individual applicant
seeking approval for a specific project.
Conclusion
While the Vermont Supreme Court has held that a zoning regulation must be deemed
unconstitutional when it is determined to be so vague and standardless as to infringe upon an
applicant’s due process rights, it has also recognized that there must be flexibility for an
appropriately established municipal panel to deal with changes in development patterns and
cumulative impacts of development over time. Town of Westford v. Kilburn, 131 Vt. 120, 125
(1973). Only when the regulatory scheme, considered in its entirety, provides limitless
discretion and opens the door to arbitrary and discriminatory decisions will the presumption of
constitutionality be overcome and the offending regulations struck down. Because the Town of
Essex Zoning Regulations at issue in this case provide sufficient standards to guide the Planning
Commission, or this Court on appeal, and because Applicant has been on notice of what specific
development can and cannot be undertaken in the RPD-I Zoning District, we conclude that
Applicant’s motion for partial summary judgment is DENIED.
Electronically signed on September 17, 2014 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Judge
Environmental Division
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