R.L. Vallee, Inc. PUD Preliminary Plat ( 2008 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: R.L. Vallee, Inc. PUD – Preliminary Plat } Docket No. 100-5-07 Vtec
In re: R.L. Vallee, Inc. PUD – Final Plat } Docket No. 101-5-08 Vtec
(Appeals of Timberlake Associates, LLP) }
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Decision and Order on Pending Motions
Appellant Timberlake Associates, LLP, appealed from two decisions of the
Development Review Board (DRB) of the City of South Burlington, approving a
preliminary plat application and a final plat application by Appellee-Applicant R.L.
Vallee, Inc. for a Planned Unit Development (PUD) at Spillane’s Service Center at 811
Williston Road. Appellant is represented by David L. Grayck, Esq.; Appellee-Applicant
is represented by Thomas G. Walsh, Esq.; and the City is represented by William E.
Flender, Esq. Appellee-Applicant has moved for partial summary judgment on
Questions 3 and 23 of the Consolidated Statement of Questions. Appellee-Applicant
has also moved to dismiss Questions 12, 17, 18, 19, and 21 of the Consolidated
Statement of Questions. For clarity of reference, this decision will refer to the questions
from the statement of questions in the appeal of the preliminary plat with the
designation “PQ,” and in the statement of questions in the consolidated appeals with
the designation “CQ.”
In Docket No. 100-5-07 Vtec, Appellant appealed the DRB decision granting
preliminary plat approval to Appellee-Applicant, and filed a statement of questions
containing twenty-one questions. These questions did not refer to any specifically-
numbered sections of the zoning ordinance. After the Court’s August 17, 2007 decision
and order on cross-motions for partial summary judgment, parties agreed to await the
DRB’s decision on the final plat approval, allowing any new appeal of the final plat
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approval to be consolidated with the appeal of the preliminary plat approval. The
Court ruled on an additional cross-motion for partial summary judgment as to PQ 21 on
February 7, 2008.
In Docket No. 101-5-08 Vtec, Appellant appealed the DRB decision granting final
plat approval, and filed a Statement of Questions containing twenty questions. These
questions did refer to specifically-numbered sections of the zoning ordinance. The
appeals were consolidated, and Appellant filed a Consolidated Statement of Questions
combining the questions from both appeals that remained after the various motion
rulings.
Appellee-Applicant has now moved to dismiss the following consolidated
questions, which ask whether the proposed project complies with the respective
specifically-numbered sections of the zoning ordinance: CQ 12: § 15.18(A)(8); CQ 17:
§13.01(A); CQ 18: § 13.01(B)(1); CQ 19: § 13.01(N)(2); and CQ 21: § 14.06(B)(3).
Appellee-Applicant has also moved for summary judgment on CQ 3 and CQ 23.
CQ 3 asks whether the project should the project “be required to meet the minimum
setback and coverage requirements” of the zoning ordinance? CQ 23 asks whether the
project requires conditional use approval “because it is multiple uses on one lot?” The
following facts are undisputed unless otherwise noted.
Appellee-Applicant owns a 0.47-acre property with an existing service station
and convenience store at 811 Williston Road, in the Commercial 1 zoning district and
the Traffic Overlay 1 zoning district. Appellant owns an L-shaped parcel of property
with an existing service station and convenience store at 801 Williston Road, which
adjoins the southerly and westerly boundaries of Appellee-Applicant’s property.
Appellee-Applicant applied for preliminary plat approval for a Planned Unit
Development on the subject property, including the replacement of the existing 2,313
square foot building with a new building of the same square footage. The new building
is proposed to house two uses: a convenience store (1,079 square feet) and a short-order
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restaurant (1,234 square feet). Appellee-Applicant also proposes to reduce the number
of fueling positions on the property from eight to six.
Appellee-Applicant’s proposal was submitted for review as a Planned Unit
Development under Article 15 of the City of South Burlington Land Development
Regulations (Regulations).1 Section 2.02 of the Regulations define a PUD as:
[o]ne or more parcels of land to be developed as a single entity, the plan
for which may propose any authorized combination of density or intensity
transfers or increases, as well as the mixing of land uses. This plan, as
authorized, may deviate from bylaw requirements that are otherwise
applicable to the area in which it is located with respect to the area,
density or dimensional requirements or allowable number of structures
and uses per lot as established in any one or more districts created under
the provisions of these regulations. . . .
Section 15.01 states that the purpose of PUD review is “to provide relief from the strict
dimensional standards for individual lots in these Regulations in order to encourage
innovation in design and layout, efficient use of land, and the viability of infill
development and re-development in the City’s Core Area . . . .”
PUD review is required for certain applications and elective for others. §§
15.02(B), (C). Appellee-Applicant applied under § 15.02(C) to have its proposal
reviewed as a PUD; that section allows “any applicant for site plan, conditional use
and/or subdivision review, or any other application for land development requiring
action by the [DRB]” to “request review pursuant to the PUD process and regulations.”
Article 15 of the Regulations sets out the procedures and considerations for PUD
approval. Like subdivision approval, PUD review is a three-stage process consisting
first of sketch plan review under § 15.05, followed by preliminary plat review, §§
1All references to section numbers in this decision refer to sections of the City of South
Burlington Land Development Regulations unless otherwise noted.
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15.08(A), (B), and then by final plat review. §§ 15.08(C)-(E). Specific criteria for review
of proposed PUDs are found in § 15.18.
Proposed PUD projects must also obtain site plan approval from the DRB under
Article 14 of the Regulations. § 14.03(A)(6). Specific criteria for site plan approval are
found in § 14.06. Certain “Supplemental Regulations” found in Article 13 also apply to
proposed PUD projects, including specifically those in § 13.01 relating to “Off-Street
Parking and Loading.”
Motion to Dismiss
Appellee-Applicant argues that CQ 12, 17, 18, 19, and 21 should be dismissed
because they were not raised in the appeal of the preliminary plat approval. However,
Appellant did raise the issues in CQ 12, 17, 18, 19, and 21 in the appeal of the
preliminary plat approval. The Statement of Questions filed in the appeal of the
preliminary plat approval simply asked whether the project complied with certain
requirements of the Regulations (or with requirements paraphrased from the
Regulations) without specifying the specifically-numbered section of the Regulations
that imposed the particular requirement. The more broadly-worded questions
regarding the preliminary plat approval in fact were inclusive of all the issues raised in
the five questions at issue in the present motion.2
CQ 12 asks whether the proposed project complies with a specific subsection of
the PUD review criteria found in § 15.18. Specifically, CQ 12 refers to § 15.18(A)(8),
2 Neither the Rules for Environmental Court Proceedings nor the statute granting
jurisdiction in these cases require issues to be raised at a preliminary approval stage in
order to preserve them for appeal at the final approval stage. See 10 V.S.A. § 8504; 24
V.S.A. § 4471; V.R.E.C.P. 5. In re Appeal of Carroll, 2007 VT 19, 181 Vt. 383, only
specifically addresses the participation requirement for appellant standing under 24
V.S.A. § 4471: that participation at one stage of the multistage approval process is
sufficient to meet that participation requirement. Carroll, 2007 VT 19, ¶¶ 1, 15.
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regarding whether certain services and infrastructure have been designed in a manner
that allows extension to adjacent properties. PQ 6 asked whether the project meets “the
applicable criteria for a PUD.” Since the applicable criteria for PUD review are found in
§ 15.18, PQ 6 incorporated all of the subsections of § 15.18, including the criteria in §
15.18(A)(8) referenced in CQ 12. Moreover, the text of CQ 12 is the equivalent in
content to that of PQ 13. Compare CQ 12 (“[w]hether the [p]roject complies with [ ]
Section 15.18(A)(8) with respect to whether the roads, recreation paths, stormwater
facilities, sidewalks, landscaping, utility lines and lighting have been designed in a
manner that is compatible with the extension of such services and infrastructure to
adjacent properties,”) with PQ 13 (“[i]s the [p]roject designed in a manner that roads,
utilities, sidewalks, and lighting are designed to be consistent with City utility and
roadway plans and standards, and adjacent properties?”).
CQ 17, 18, and 19 all ask whether the project complies with certain specific
subsections of the Supplemental Regulations regarding “Off-Street Parking and
Loading” found in § 13.01. Two questions in the appeal of the preliminary plat
approval also related to parking issues: PQ 16 and PQ 17. PQ 16, which asked whether
the project is “designed to provide . . . safe pedestrian movement, and adequate parking
areas,” is broad enough to include the parking and parking-related safety issues in §
13.01 that are now raised by CQ 17, 18, and 19.
CQ 21 asks whether the project complies with a specific subsection of the site
plan review criteria found in § 14.06. PQ 15 asked whether the project met the site plan
review criteria of the ordinance. Since the site plan review criteria are found in § 14.06,
PQ 15 incorporates all of the subsections of § 14.06, including § 14.06(B)(3), the subject
of CQ 21.
As all five of the challenged consolidated questions were found within the initial
statement of questions in Docket No. 100-5-07 Vtec, Appellee-Applicant’s Motion to
Dismiss them must be DENIED.
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Motion for Summary Judgment
Appellee-Applicant has moved for summary judgment on CQ 3 and 23, which
ask whether the project must meet minimum setback and coverage requirements, and
whether conditional use approval is required for the project.
The DRB has authority to modify minimum setback and coverage requirements
for PUDs under § 15.02(A)(3), which states that, “[i]n conjunction with PUD review, the
modification of these [ ] Regulations is permitted subject to the conditions and
standards in this Article and other applicable provisions of these Regulations.” This
allows the DRB to modify any portion of the Regulations, including those related to
setbacks and coverage, for projects applying under the PUD review procedures.
Material facts are disputed, however, as to whether any of the requested modifications
of the regulatory requirements should be granted by the Court; so that Appellee-
Applicant’s Motion for Summary Judgment as to CQ 3 must be DENIED..
In review of a PUD application, a separate conditional use permit is not required,
pursuant to § 15.03(A). That section provides that “[i]n any application for PUD review,
all uses allowed as permitted or conditional uses in the underlying district(s) involved
in the application shall be deemed to be permitted uses and a separate conditional use
permit or permits shall not be required” (emphasis added). Under § 15.02(C), any
applicant for a permit requiring DRB review may apply for approval of the project as a
PUD. Thus a separate conditional use permit is not required in this PUD proceeding,
and Appellee-Applicant’s Motion for Summary Judgment as to CQ 23 must be
GRANTED.
Of course, the issue of whether the project meets all the standards for PUD
approval will be argued by the parties in their post-trial memoranda based on the
evidence submitted at trial, including whether the purpose statement regarding PUDs
in § 15.01 (to encourage innovation in design and layout, and efficient use of land) has
any independent regulatory effect.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellee-Applicant’s Motion for Partial Summary Judgment on Question 3 of the
Consolidated Statement of Questions is DENIED, Appellee-Applicant’s Motion for
Partial Summary Judgment on Question 23 of the Consolidated Statement of Questions
is GRANTED, and Appellee-Applicant’s Motion to Dismiss Questions 12, 17, 18, 19, and
21 of the Consolidated Statement of Questions is DENIED.
Done at Berlin, Vermont, this 3rd day of October, 2008.
_________________________________________________
Merideth Wright
Environmental Judge
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