Cushing Family, LLC Site Plan Application ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Cushing Family, LLC }
Site Plan Application } Docket No. 61-4-09 Vtec
(Appeal of Cushing) }
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Decision and Order on Pending Motions
Appellant-Applicant Cushing Family, LLC (Applicant) appealed from a decision
of the Development Review Board (DRB) of the Town of Salisbury denying site plan
approval for a proposed retail store, repair service center, and rental and storage
buildings. Applicant is represented by Karl W. Neuse, Esq. and Benjamin W. Putnam,
Esq.; the Town is represented by James F. Carroll, Esq.
Applicant has moved for partial summary judgment on Questions 5, 15, and 16
of its Statement of Questions, relating to which version of the zoning ordinance applies
to this application, and has also moved to amend its application for site plan approval.
If the Court should conclude that the application was considered under the incorrect
version of the zoning ordinance, the Town has moved to remand the matter to the DRB.
The following facts are undisputed unless otherwise noted.
The property at issue in this appeal is located at the address of 991 U.S. Route 7,
in a Commercial zoning district in the Town of Salisbury. On Tuesday, December 23,
2008, Applicant delivered its application for Zoning Permit No. 08-64 (zoning permit
application) to the Town offices. The application proposed to remove an existing
building and garage, and to construct and operate a “Retail Store/Repair Service
Center/Rental and Storage Building,” on Applicant’s property. The Zoning
Administrator did not personally receive and process the application until Monday,
December 29, 2008. The Zoning Administrator responded to the filing of the zoning
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permit application by a letter to Mr. Bradford Cushing (c/o Applicant) dated December
31, 2008. At this time, the Town of Salisbury Zoning Regulations enacted in 2007 (2007
Regulations) were in effect.
The letter stated that “the land is zoned for commercial use and the uses you are
proposing are permitted,” and went on to list three prior requirements that would have
to be filed before the Zoning Administrator could act on the zoning permit application,
citing to sections of the 2007 Regulations for each such requirement.1 These three
requirements consisted of documentation of an approved or complying wastewater
system under § 320(5) of the 2007 Regulations; additional permit fees under § 320(1) of
the 2007 Regulations (as each of the separate proposed buildings required a separate
permit); and obtaining “site development plan review and approval” (site plan
approval) from the DRB under § 350, as required by § 320(6) of the 2007 Regulations.
The letter “encouraged” Applicant to “appear before the DRB to present [the]
proposal,” and provided the application form necessary for Applicant to file with the
DRB, together with information about the required documentation and filing fee for the
1
Under the 2007 Regulations, no development may commence unless a zoning permit
is issued by the Zoning Administrator. 2007 Regulations § 310. To obtain a zoning
permit, an applicant must submit a completed application to the Zoning Administrator.
Id. If the application is for a proposal that only requires a zoning permit, the Zoning
Administrator may proceed to issue or deny the permit, depending on whether it meets
the dimensional and district requirements in the zoning ordinance. Otherwise, if the
application is for a proposal that requires a discretionary ruling from the DRB, such as
conditional use approval, see id. § 342, or site plan approval, see id. § 350, the Zoning
Administrator must first refer the matter to the DRB for any approvals necessary, before
the Zoning Administrator may rule on the zoning permit. Id. § 310; see also Wesco, Inc.
v. City of Montpelier, 169 Vt. 520, 523 (1999) (Upon receiving a zoning permit
application, a zoning administrator has three options: grant the permit, deny the permit,
or forward it to the appropriate municipal panel for necessary approvals). Only after
the DRB has issued all necessary approvals and all other requirements are met, may the
Zoning Administrator take the “final step” of issuing the zoning permit. Appeal of
Ghia, No. 31-2-03 Vtec, slip op. at 2 (Vt. Envtl. Ct. Nov. 19, 2003) (Wright, J.)
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DRB proceeding. The letter informed Applicant that the Zoning Administrator would
“hold [the] permit and application in abeyance until [Applicant] or the [DRB] makes a
final decision.”
On January 5, 2009, public notice was published in the Addison Independent for
the first public hearing before the Selectboard on proposed revisions to the Town’s
Unified Development Regulations (2009 Proposed Regulations), to be discussed at the
January 20, 2009 Selectboard meeting.
Sometime between January 7, 2009, and January 13, 2009, Applicant delivered to
the DRB its Site Plan Application No. 2009-02 (site plan application) and the required
filing fee. Notations on the application form indicate that the “[m]ap, names &
addresses” were received on January 2, 2009; that the $75 filing fee was received on
January 7, 2009; and that the application as a whole was considered complete or marked
as “received” on January 13, 2009.2 Applicant simultaneously submitted, as part of the
site plan application: a map and a list of adjacent property owners, two design
drawings, and a cover sheet from a state water supply and wastewater disposal permit
issued to Applicant in 2007 for an earlier proposal.
The DRB held its first hearing on the site plan application on February 25, 2009.
As reflected in the meeting minutes (February 2009 DRB Minutes), the DRB discussed
the issue of whether the application should be reviewed under the 2007 Regulations or
2009 Proposed Regulations. As reflected in the minutes, the Zoning Administrator
“stated that the process started in late December and proceeded under the [2007]
Regulations.” February 2009 DRB Minutes, at 1. Because the DRB planned to conduct a
subsequent site visit and requested a “better site plan” from Applicant, the DRB voted
to continue the hearing at its March 18, 2009 meeting. Id.2Although the parties dispute the date that the site plan application was “received” or
“submitted,” the discrepancies between their positions do not affect the resolution of
the present motions.
3
The hearing reconvened as planned on March 18, 2009. As reflected in the
minutes for that meeting (March 2009 DRB Minutes), the DRB again discussed whether
the site plan application should be reviewed under the 2007 Regulations or the 2009
Proposed Regulations. At that meeting, the members of the DRB agreed that the site
plan application was not complete until the filing fee was received, which was either on
January 7, 2009, or January 13, 2009. At the close of the meeting, the DRB entered into
deliberative session.
On March 24, 2009, the DRB issued its written decision denying site plan
approval for the project (DRB Decision). The DRB denied the application on the basis
that “it should have been heard under the New Unified Regulations as referenced in 24
VSA. §4449(d).” DRB Decision, at 2. The DRB decision noted that the “notice of
hearing on the New Unified Regulations came out in the paper on January 5, 2009,” and
determined that the application submitted for site plan approval was not complete until
after that date. Applicant filed the present appeal with this Court on April 20, 2009.
On May 29, 2009, the Selectboard held a special meeting on the 2009 Proposed
Regulations. The public notice for the special Selectboard meeting stated that the
Selectboard was to “[r]eview and consider unified regulations in light of advice from
the League of Cities and Towns”; no other information regarding the 2009 Proposed
Regulations was included in the public notice. Facts are disputed as to whether or
when the public notice of the May 29, 2009 special Selectboard meeting was posted.3
3Although the affidavit of the DRB Clerk states that the public notice for the May 29,
2009 meeting had been posted “in the Town Office, at the Town Post Office[,] and at the
Town library prior to the meeting,” Cameron Aff. ¶ 13 (Aug. 13, 2009), Mr. Cushing
“examined the public notice board in the Town of Salisbury Offices on the afternoon of
May 28, 2009[,] and observed that no notice of the May 29, 2009 Selectboard meeting
had been posted at that time.” Cushing Aff. ¶ 6 (Sept. 10, 2009).
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As reflected in the minutes of the May 29, 2009 special Selectboard meeting, the
Selectboard voted to “adopt the Unified Development Regulations as written as
‘Interim’ Regulations” (2009 Interim Regulations).
Questions 15 and 16: Zoning Permit Application
Applicant has moved for summary judgment on Questions 15 and 16 of the
Statement of Questions, as to whether Applicant has vested rights under the 2007
Regulations with regard to the uses proposed in its December 2008 zoning permit
application.
Although this is an appeal only of the DRB’s decision regarding Applicant’s site
plan application, the Zoning Administrator made certain determinations in his
December 31, 2008 letter as to the use categories applicable to the project and what
kinds of additional approvals were necessary before he could rule on the zoning permit
application. The Zoning Administrator’s December 31, 2008 letter was not appealed,
and therefore became final. See 24 V.S.A. § 4472(d).
As those determinations were made prior to January 5, 2009, Applicant has
vested rights to have the proposal considered under the use categories in the 2007
Regulations, specifically, as stated in the Zoning Administrator’s letter, that “the land is
zoned for commercial use” and that the proposed uses are classified as “permitted”
uses under the 2007 Regulations.4
The December 31, 2008 letter explained that Applicant would have to obtain site
plan approval from the DRB before the Zoning Administrator could rule on the zoning
4
That is, if the 2009 Regulations make the proposal a conditional use requiring
conditional use approval, as suggested in the minutes of the February and March DRB
meetings, Applicant is not required to obtain conditional use approval for the project,
because the types of other approvals required as a prerequisite for zoning permit under
§ 320(6) of the 2007 Regulations were fixed as of the December 31, 2008 letter.
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permit application, and further explained how to apply to the DRB for such approval.
The fact that Applicant’s application to the DRB for site plan approval was filed after
January 5, 2009, does not act retroactively to alter the effect of the Zoning
Administrator’s December 31, 2008 letter.
Therefore, summary judgment must be GRANTED to Applicant on Questions 15
and 16, in that the December 31, 2009 letter gave Applicant vested rights under the 2007
Regulations as to the use categories applicable to the project and what kinds of
additional approvals were necessary.
Question 5: Regulations Applicable to DRB Consideration of Site Plan
Question 5 of the Statement of Questions asks whether Applicant has “a right to
have the Site Plan Application reviewed under the 2007 Regulations,” as opposed to
under the 2009 Interim Regulations adopted on May 29, 2009.
The Selectboard’s January 5, 2009 publication of the public notice for the first
public hearing on the 2009 Proposed Regulations triggered 24 V.S.A. § 4449(d). That
provision states, in part:
If a public notice for a first public hearing . . . is issued . . . by the
local legislative body with respect to the adoption or amendment of a
bylaw . . . , the administrative officer, for a period of 150 days following
that notice, shall review any new application filed after the date of the
notice under the proposed bylaw or amendment and applicable existing
bylaws and ordinances.
24 V.S.A. § 4449(d). Since the site plan application was not submitted until some time
between January 7, 2009, and January 13, 2009, after the public notice was published, it
should have been considered by the DRB under the 2009 Proposed Regulations because
the review occurred within the 150-day window mandated by 24 V.S.A. § 4449(d).
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The fact that the zoning permit application for the project was submitted prior to
the public notice, which gave Applicant vested rights under the 2007 Regulations as to
the use categories applicable to the project and what kinds of additional approvals were
necessary, does not change this result. Once the zoning permit application was
received, the Zoning Administrator correctly noted that the project required site plan
approval from the DRB before the zoning permit could be acted upon, and referred
Applicant to the DRB to apply for site plan approval. See supra note 1.
As discussed above, before the Zoning Administrator may rule on a zoning
permit application, he must first refer the matter to the DRB for any approvals
necessary under the zoning regulations. See Wesco, 169 Vt. at 523. The Vermont
Supreme Court has explained that submission of one type of application, which vests an
applicant’s rights under the regulations in effect as to that application, does not also
give the applicant vested rights as to applications later submitted under a new set of
regulations. See In re Taft Corners Assocs., Inc., 171 Vt. 135, 139–140 (2000) (holding
that a subsequent zoning permit application did not vest at the time the applicant
submitted a prior subdivision application; instead, the applicant’s rights vested for each
application separately at the time that each was individually submitted); see also
Appeal of Jolley Assocs., No. 198-11-03 Vtec, slip op. at 4 (Vt. Envtl. Ct. Apr. 11, 2005)
(Wright, J.) (stating that applications submitted for two separate approvals, specifically
site plan and conditional use approval, are “two types of applications and their review
processes are separate and distinct” (citing In re Champlain Oil Co., 2004 VT 44, ¶17;
Taft Corners, 171 Vt. at 139–140)). Therefore, Applicant’s submission of the zoning
permit application prior to the public notice did not vest any rights to have the later-
filed site plan application reviewed under the 2007 Regulations.
The DRB should have conducted a substantive review of the project’s site plan
application under the 2009 Proposed Regulations, because the application was
submitted within the 150-day time period provided in § 4449(d). However, although
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the DRB evidently realized that the application “should [be] heard under the New
Unified [Development] Regulations,” it did not proceed to do so. DRB Decision, at 2.
Rather, it denied the application for site plan approval without ruling on its merits.
Even in a de novo appeal, the Court acts in an appellate capacity to decide issues
that divide the parties after the DRB has ruled in the first instance. See In re Lathrop
Ltd. P’ship II, No. 210-9-08 Vtec, slip op. at 4 (Vt. Envtl. Ct. Aug. 14, 2009) (Durkin, J.)
(The Vermont Supreme Court has “cautioned against a review on appeal of land use
issues that had not first been presented for consideration by the municipal panel
below.” (citing Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 13 (1989)). Therefore,
regardless of whether Applicant now seeks to amend the site plan application, and
regardless of the scope of that amendment, the DRB should consider the merits of the
site plan application under the applicable regulations in the first instance. Therefore,
the Town’s Motion to Remand (found in the Town’s response to Appellant’s Motion to
Amend the Site Plan Application) is GRANTED.
On remand, it will be for the DRB to determine in the first instance whether to
apply the 2009 Regulations, whether the 2009 Interim Regulations were properly
adopted, and, if not, what Regulations to apply to the site plan application.
Applicant’s Motion to Amend
Applicant also has moved to amend its site plan application. Because the Court is
not ruling on the application, but is instead remanding it to the DRB, it will be for the
DRB to decide in the first instance whether to consider any changes to the site plan.
Applicant’s Motion to Amend has therefore become moot.
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Applicant’s Motion for Summary Judgment is GRANTED in Part and DENIED in
Part, as discussed above, and the Town’s Motion to Remand is GRANTED, concluding
this appeal.
Done at Berlin, Vermont, this 17th day of December, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
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