Perras and Sons, Inc. Preliminary Plat ( 2006 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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Perras & Sons, Inc. Preliminary Plat } Docket No. 29-2-06 Vtec
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Decision on Pending Motions
Appellant-Applicants Ron and Deb Perras, d/b/a/ Perras & Sons, Inc., appealed from a
decision of the Town of Georgia (Town) Planning Commission dated January 26, 2006, denying
Appellant-Applicants’ application for preliminary plat approval for a 9-lot subdivision and
planned residential development (PRD) in the Lakeshore Residential and Recreational (L-2) and
Agricultural, Rural Residential (AR-1) zoning districts.
Several pre-trial motions are now pending before this Court. Interested Person Gary
Kupperblatt moves for summary judgment on Questions 1–8 of Appellant-Applicants’ Statement
of Questions; Appellant-Applicants oppose Mr. Kupperblatt’s motion and move for summary
judgment solely as to their Question 9; Mr. Kupperblatt cross-moves for summary judgment on
Question 9; and the Town opposes Appellant-Applicants’ motion for partial summary judgment
and cross-moves for summary judgment on Question 9.
Appellant-Applicants are represented by Paul S. Gillies, Esq.; the Town is represented by
Amanda Lafferty, Esq.; Interested Persons Richard and Karen Babcock are represented by
Thomas Walsh, Esq.; Interested Persons Rodolphe and Elizabeth Vallee are represented by
Steven R. Ducham, Esq.; and Interested Persons Gary Kupperblatt, Fred Grimm, Heather
Grimm, and Edmund Wilcox represent themselves.
Factual Background
The following material facts are undisputed unless otherwise noted:
1. Appellant-Applicants own sixty-three± acres of land located on Lake Brook Drive
in the L-2 and AR-1 zoning districts.
2. Lake Brook Drive is a “private road” as that term is defined in the Town Zoning
Regulations.
3. On May 16, 2005, Applicant-Appellants met with Mark Smith, the Town Planner,
to discuss a sketch plan concept for their property, after which the Town Planner referred the
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matter to the Planning Commission for sketch plan review. On May 17, 2005, the Town Planner
sent a “follow-up” letter to Appellant-Applicants, attached to the Town’s cross-motion for
summary judgment as Attachment 2, in which he informed Appellant-Applicants that “the
Sketch Plan meeting is an informal discussion” and that “Sketch Plan is not a public hearing.”
4. Appellant-Applicants submitted an 11′′ by 17′′ sketch plan graphic to the Planning
Commission, which considered the sketch plan during a regularly scheduled meeting held on
June 28, 2005, the minutes of which are attached to the Town’s cross-motion for summary
judgment as Attachment 4. The submitted sketch plan graphic, attached to the Town’s cross-
motion for summary judgment as Attachment 3, shows nine residential lots and one thirteen-acre
“conservation easement area.” The June 28th sketch plan meeting was not warned to the public,
although it was noticed to adjacent landowners and posted in the Town offices in accordance
with Subdivision Regulations § 300.
5. On August 10, 2006, the Planning Commission sent Appellant-Applicants a
“follow-up” letter, attached to the Town’s cross-motion for summary judgment as Attachment 5,
informing Appellant-Applicants that the proposed project as presented at the June 28th hearing
did not comply with the zoning and subdivision regulations1 and suggesting options to bring the
project into compliance. The August 10th letter stated that the Planning Commission “expect[s]
you to continue at sketch plan phase,” noted that Appellant-Applicants would have to submit a
new sketch plan together with a $100 sketch plan fee because the “former sketch plan has
expired,” and informed Appellant-Applicants that their new sketch plan would be reviewed on
September 13, 2005.
6. On September 13, 2005, the Planning Commission reviewed Appellant-
Applicants’ revised sketch plan at a regularly scheduled meeting, the minutes of which are
attached to the Town’s cross-motion for summary judgment as Attachment 6. The minutes
indicate that the revised sketch plan had been reconfigured to remove one residential lot,
resulting in eight residential lots with 17.8 acres of common land. Numerous issues regarding
the proposed project’s compliance with the regulations were raised and discussed at the meeting,
both by participants and Planning Commission members. In response to a question posed by
abutting landowner, and now Interested Person, Richard Babcock regarding curtain drains and
Specifically, Zoning Regulations § 5010.3(7), limiting private dead-end roads to 1,000 feet, and Subdivision
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Regulations § 800.5, limiting all dead-end roads to 1,000 feet.
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driveway lengths, Commission Chair George Bilodeau “reiterated that this is just a sketch plan
[review].”
7. In a letter dated September 21, 2005, attached to the Town’s cross-motion for
summary judgment as Attachment 7, Commission Chair George Bilodeau informed Appellant-
Applicants that the “Planning Commission has classified your proposal as a major subdivision”
and recommended certain procedural steps to be taken by Appellant-Applicants “prior to
application for Preliminary Plat.” The September 21st letter was not characterized as a decision,
and contained no information regarding a right of appeal.
8. On December 12, 2005, Appellant-Applicants applied to the Planning
Commission for preliminary plat approval for a nine-lot2 subdivision and PRD, consisting of
eight residential lots ranging from 1.9 to 21.7 acres in size and one open space/common land lot
of 19± acres in size.
9. The Planning Commission held a warned public hearing on the preliminary plat
approval application on January 10, 2006 and issued a decision denying the application on
January 26, 2006.
10. The proposed subdivision and PRD, as presented in the preliminary plan
application submitted on December 12, 2005, consists of nine lots: eight residential lots ranging
in size from 1.9 acres to 21.7 acres, and 19.02 acres area of common land containing a Class 3
wetland. The residential lots are located easterly of Georgia Shore Road. Appellant-Applicants
propose to widen a private road called Lake Brook Drive running easterly from Georgia Shore
Road and to construct a cul-de-sac at the easternmost end of Lake Brook Drive.
11. Eight separate driveways connect each of the residential lots to the cul-de-sac:
five driveways run parallel to each other from the easterly side of the cul-de-sac for
approximately 100′ and then diverge toward the five proposed house sites lying northerly and
easterly of the cul-de-sac. Three other proposed driveways connect to the southerly portion of
the cul-de-sac and provide access to the three proposed house sites southerly of the cul-de-sac.
This design is somewhat unique and resembles the widened, fanning shape of a river delta
system. A copy of Appellant’s site map is reduced and attached to this Decision for reference.
2  The record reveals some confusion about the total number of lots proposed for Applicants’ 63± acre parcel. The
site plan now before the Court was submitted with the preliminary plat application on December 12, 2005. This site
plan shows eight driveways serving as access for eight lots proposed for development, with an additional ninth lot
containing 19.02 acres, not presently served by a driveway and labeled as “Common Land.”
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Discussion
I. Is the pending application properly before the Court?
Interested Person Gary Kupperblatt moves for summary judgment on Questions 1–8 of
Appellant-Applicants’ Statement of Questions. Question 1 asks: “Whether this eight-lot3
subdivision with eight units and common land meets the requirements of Georgia’s subdivision
regulations and zoning bylaws as a PRD, in satisfying dimensional standards pursuant to Section
6010 of the bylaws and Section 700.3 of the regulations or in qualifying for the flexibility
standards available through the bylaws.” Mr. Kupperblatt argues that Question 1 must be
answered in the negative, because the Appellant-Applicants’ application failed to comply with
Zoning Regulation § 6010.4.1 and § 6010.2.3(a).
Section 6010.4.1 established the specific standards for a PRD proposed in the AR-1 and
L-2 zoning districts. It states that, in “determining the allowed number of lots or density of a
property [proposed for a PRD development], the applicant will be required to demonstrate that
the same number of requested lots could be supported in a conventional subdivision,” including
consideration of sewage, water, road frontage, and land features (original emphasis indicating
defined terms removed throughout this opinion). Section 6010.2.3(a) requires applicants to
submit a “statement setting forth the nature of all proposed modifications of the existing zoning
regulations and the proposed standards and criteria which the applicant proposes for the
development.”
Appellant-Applicants did not submit a statement of proposed modifications and proposed
alternative standards and criteria with their application for preliminary plat approval. Thus, Mr.
Kupperblatt argues, the Court must conclude that Appellant-Applicants’ application fails to
comply with the requirements of the regulations as written, and in particular, with § 6010.4.1.
Section 6010.4 governs applications for PRD in the AR-1 and L-2 zoning districts, and
imposes stricter requirements for PRDs in those districts than in other districts. Compare
§ 6010.4.1 (requiring applicants for PRDs in the AR-1 and L-2 districts to “demonstrate that the
same number of requested lots could be supported in a conventional subdivision”) with
§ 6010.5.2 (stating that the maximum allowable density for PRDs in the AR-2 and AR-3 districts
3  Even though Appellant-Applicants’ plan actually calls for the creation of nine lots, Mr. Kupperblatt characterized
the application as being for eight lots, since only eight lots are planned for development. The ninth lot is proposed
to be conserved and undeveloped.
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will be established by calculating “the total size of the subject parcel divided by the minimum lot
size for the zoning district.”).
Mr. Kupperblatt argues that “a conventional 8-lot subdivision is impossible for this
parcel” primarily because “the frontage requirements for [a] conventional subdivision (200′ in L-
2 [under § 3150.4], 250′ in AR-1 [under § 3050.4]) cannot be met for eight homes[,] even with
the most generous estimate of frontage on Lake Brook Road.” Mr. Kupperblatt therefore moves
for summary judgment on Question 1 and moves to dismiss Questions 2–8 because those
Questions “pertain to determinations that are secondary due to the inappropriate number of lots
in the Site Plan.”
Appellant-Applicants argue in opposition that the frontage requirements applicable under
§§ 3050.4 and 3150.4 are not absolute, but may be reduced by the Planning Commission
pursuant to § 5010.4, which states that the Commission “may approve reduced frontage
requirements for lots on cul-de-sacs or other dead ends of public or private roads.” Appellant-
Applicant argues that because the Commission has the discretionary authority to reduce frontage
requirements, “there is no violation of Section 6010.4.1’s requirement that the applicant
demonstrate a conformance to existing zoning regulation for a ‘conventional subdivision.’”
There is no evidence that the Planning Commission considered the proposed
development under § 6010.4.1, rather than § 6010.5.2. Nor is there any evidence that Appellant-
Applicants ever proposed a modification of the applicable frontage requirements pursuant to
§ 5010.4.
It is for the Planning Commission to determine in the first instance whether the language
in § 6010.4.1 requiring a showing that the same number of requested lots could be supported “in
a conventional subdivision” allows for a showing that the proposed number of lots could be
supported in a “conventional subdivision” after any applicable discretionary modification has
been applied, or whether the term “conventional subdivision” instead refers to a subdivision
without any such modification.
As it appears that Appellant-Applicants did not request and the Planning Commission did
not consider the specific number of lots a “conventional subdivision” would support on
Appellant-Applicants’ property, we must conclude that this Court does not have the
jurisdictional authority to now consider Appellant-Applicant’s request for modification of the
road frontage requirements under § 5010.4. If we were to consider and decide, prior to review
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by the appropriate municipal panel, whether the requested number of lots could be supported in a
conventional subdivision, we would do so in clear violation of this Court’s jurisdictional
limitations. See Simendinger v. City of Barre, 171 Vt. 648, 652 (2001) (mem.) (noting that the
Environmental Court cannot consider issues not first addressed at the municipal board level).
Thus, we conclude that the Planning Commission must first be given an opportunity to
review and offer a conclusion on what the term “conventional subdivision” refers to in
connection with a PRD subdivision application in the applicable zoning districts. We therefore
remand the pending preliminary plat application back to the Planning Commission, so that
Appellant-Applicants may have the opportunity to “demonstrate that the same number of
requested lots [proposed in their PRD subdivision] could be supported in a conventional
subdivision” under § 6010.4.1. Upon remand, the parties will have a full opportunity to
convince the Planning Commission of whether it is appropriate to consider the availability of
modifications under § 5010.4 when calculating how many lots would be allowed in a
“conventional subdivision,” as that term is used in § 6010.4.
Because we must remand this matter for a determination of whether the proposed
subdivision and PRD meets the requirements of § 6010.4.1, which requires a demonstration by
the Applicants that the same number of lots could be supported in a conventional subdivision in
the AR-1 and L-2 zoning districts, we decline to address Questions 2–8 of Appellant-Applicants’
Statement of Questions.
Appellant-Applicants’ motion for partial summary judgment on Question 9, however,
raises an important question of law that is addressed below.
II. Does sketch plan review have finality?
Appellant-Applicants’ Motion for Partial Summary Judgment relates solely to the
question of “[w]hether the Town’s decision at Sketch Plan, which was unappealed, constitutes a
binding decision that must direct and inform the process of Preliminary Plan review.”
Appellant-Applicants contend that the letter from Planning Commission Chair Bilodeau, dated
September 21, 2005, informing Appellant-Applicants that the “Planning Commission has
classified your proposal as a major subdivision” and recommending certain procedural steps to
be taken by Appellant-Applicants “prior to application for Preliminary Plat,” constitutes a final,
unappealed decision that is binding on the Town, and on this Court, “for what it says and does
not say.” Appellant-Applicants’ Mot. for Partial Summ. J. at 2. While Appellant-Applicants do
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not specifically so state, they imply that because the September 21st letter did not conclude that
the proposed subdivision and PRD fails to meet the general requirements of the zoning and
subdivision regulations, the Planning Commission is barred from later concluding at the
preliminary plat review stage that the proposed subdivision and PRD fails to meet those
requirements.
Appellant-Applicants cite the subdivision regulations at § 320 in support of their
argument that binding determinations are made at the sketch plan stage. Section 320 states in
pertinent part that “[t]he Commission shall study the sketch plan to determine whether or not it
conforms to, or would be in conflict with, the Plan, the Zoning Regulations and any other By-
Laws then in effect, and shall, where it deems necessary, make specific recommendations for
changes in subsequent submissions. Within a reasonable timeframe, such written
recommendations shall be sent to the applicant.”
Section 320 plainly imposes a duty on the part of the Planning Commission to study the
applicants’ submitted sketch plan and determine whether it conforms to the Town’s regulatory
scheme, but that determination is made for the purpose of making recommendations to aid the
applicant in preparing for preliminary review. The determination of conformity under § 320
need not be, and was not in this case, shared with the applicant. The purpose of sketch plan
review is “classification and initial discussion,” Subdivision Regulations § 300. Sketch plan
approvals “shall not constitute approval of a subdivision plat,” Subdivision Regulations § 330,
but are “merely authorization for the applicant to file a preliminary plat or final plat application,”
id.
This Court recently held that “preliminary determinations that are not successfully
appealed from provide for finality on certain legal determinations properly made at that stage of
the subdivision review proceeding,” In re: Simpson Dev. Corp., Docket No. 54-3-05 Vtec (Vt.
Envtl. Ct., June 27, 2006), slip op. at 13. In Simpson, the Town of Norwich Development
Review Board (DRB) had issued a decision during preliminary review,4 approving the
applicants’ preliminary subdivision and PRD application. The preliminary decision issued by
the Norwich DRB included Findings of Fact, Conclusions of Law, Proposed Conditions,
Recommended Changes, and Requests for Further Documentation. One of those findings
The Town of Norwich requires that subdivision applications go through four stages of review: a pre-application
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meeting, preliminary review, intermediate review, and final review.
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specifically stated that “the proposed subdivision plan generally conforms to applicable
subdivision review standards . . . and with other municipal regulations.” Simpson at 13. Then,
at the intermediate review stage, the DRB denied the applicant’s proposed PRD. Appellants
successfully argued on appeal that the Town was bound by the DRB’s preliminary determination
that the proposed project was generally allowed on the proposed location, subject to any
conditions imposed at later stages of the subdivision review process.
The preliminary decision in Simpson, like the preliminary decision on appeal here, was
issued as a “Notice of Decision,” following a warned public hearing, and containing information
regarding appeal rights. By contrast, the September 21st letter sent to Appellant-Applicants
following sketch plan review was not issued as a decision, was not preceded by a warned public
hearing, and contained no findings, conclusions, or information regarding appeal rights. Indeed,
Georgia’s subdivision regulations specifically provide that “[s]ketch plans shall not be publicly
warned . . ., as they do not constitute Public Hearings.” Subdivision Regulations § 300. One
consequence of the lack of a warned public hearing is that potential interested parties have no
notice of the proceeding. If Appellant-Applicants’ argument were to prevail, interested parties
would be bound by a “decision” of which they had no prior notice or opportunity to be heard.
Such an outcome is contrary to both reason and law. See 24 V.S.A. § 4463(a) (“Before any plat
is approved, a public hearing on the plat shall be held by the appropriate municipal panel after
public notice.”).
Sketch plan review is used in many Vermont municipalities as an initial opportunity for
the appropriate municipal panel to view a planned subdivision or PRD and make some initial
determinations as to whether the proposed project should be reviewed on a minor or major basis.
The Georgia Subdivision Regulations employ a similar procedure and do not require its Planning
Commission to announce a final determination of conformance with the Bylaws and Regulations
at the sketch plan stage. See Subdivision Regulations §§ 300 and 330.
We therefore conclude that the determination authorized and required at the sketch plan
stage, namely the determination of whether the proposed project should be viewed as a major
subdivision, is a determination that becomes final if not successfully appealed from. However,
the Planning Commission is not required or authorized to express a final determination of
whether a proposed project may generally conform to the municipal regulations, or what
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conditions may be required to do so, until an application is made for preliminary plat review
under the Georgia Regulations.
For the foregoing reasons, we hereby GRANT summary judgment to Mr. Kupperblatt as
to Questions 1 through 8. We also GRANT summary judgment to both Mr. Kupperblatt and the
Town of Georgia as to Question 9 and DENY Appellant-Applicants’ motion for summary
judgment on that same Question.
The pending preliminary plat application is hereby REMANDED to the Georgia
Planning Commission for reconsideration in accordance with this Decision. This concludes the
proceedings on the pending application before this Court, as noted in the accompanying
Judgment Order.
Done at Berlin, Vermont this 18th day of October, 2006.
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Thomas S. Durkin, Environmental Judge
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