Northern Vermont Rentals, LLC Extension ( 2017 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Environmental Division Unit Docket No. 5-1-17 Vtec
Northern Vermont Rentals, LLC Extension DECISION ON MOTION
Decision on Motion for Summary Judgment
This is an appeal from a Town of Lyndon Development Review Board decision denying
Northern Vermont Rentals, LLC’s application for a two-year extension of the construction
completion date for a conditional use permit to make certain changes to an existing mobile home
park. Applicant, represented by L. Brooke Dingledine, Esq., filed a motion for summary judgment
on July 31, 2017. The Town of Lyndon, represented by Hanne A. Anderson, Esq., filed opposition
to the Applicants motion for summary judgment.
Legal Standard
We will grant summary judgment to a party “if the movant shows 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). In determining whether there is any dispute over a material fact, “we accept as
true allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material.” White v. Quechee Lakes Landowners’
Ass’n, Inc., 170 Vt. 25, 28 (1999) (citation omitted). “Further, the nonmoving party receives the
benefit of all reasonable doubts and inferences.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶
15, 176 Vt. 356 (citation omitted).
Factual Background
We recite the following facts solely for the purposes of deciding the pending motion for
summary judgment.
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1. Mark Bean is the owner of the Riverview Estates Mobile Home Park (the Park) which is
located on a 17.6-acre parcel of land on the east side of Route 114, just east of the junction with
Lynburke Road and bordered to the east by the Passumpsic River in the Town of Lyndonville,
Vermont.
2. The Park is located in the flood hazard area.
3. On July 21, 2005, Mr. Bean received a conditional use permit (the 2005 Permit) from the
Lyndonville Development Review Board (the DRB) to fill the Park property to raise the ground
floor level of every mobile home in the Park out of and above the 100-year flood hazard area.
The 2005 Permit also allowed Mr. Bean to increase in the number of homes in the Park from 61
to 63 and to close off the southernmost curb cut onto Route 114. The DRB required that Mr.
Bean fill the park so that each home would be raised to 12 inches above the 100-year flood hazard
area and required him to relocate any lots that were in the floodway. In addition, all of the raised
homes are required to be tied down and all hazardous materials tanks (oil and propane tanks,
etc.) must be anchored to prevent them from floating away.
4. Mr. Bean contends that filling and raising lots out of the flood hazard area is a complicated
and arduous process because each mobile home must be moved off its site, the site work done
to raise the property up, and then the home returned to the original footprint. Mr. Bean contends
that the project is financially costly and with the State’s strict limitation on mobile home park
rental increases, these significant costs cannot be recouped through rental increases.
5. Mr. Bean alleges he was unable to continue the project beyond 60% completion due to
the difficulty and expense of the project.
6. The filling and raising of the Park will improve the safety of Park residents and will protect
public safety by securing the homes and hazardous material tanks so they will not float away
during a flood event.
7. Mr. Bean applied for a renewal of the 2005 Permit in 2015 so that he could complete the
project.1 The 2015 application also proposes the addition of four new lots.
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The renewal application lists Mark Bean and Riverview Estates Mobile Home Park as the property owners,
and Mark Bean, Northern Vermont Rentals, LLC, and Riverview Estates Mobile Home Park as the applicants. The
relationship between Mr. Bean and Northern Vermont Rentals, LLC is unclear.
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8. On May 7, 2015, the application to renew the 2005 Permit was approved. Pursuant to the
Bylaws, all activities authorized by the permit were to be completed within two years of the date
of issue, or the zoning permit would become null and void, unless the DRB extends the
completion date for good cause shown. 2016 Bylaws § 13.8.
9. The Town amended the Bylaws effective September 27, 2016.
10. On October 28, 2016, Mr. Bean applied for an extension of the construction completion
date, alleging that the arduous nature of the project required more time to fill and raise the
remaining 40% of the Park.
11. Mr. Bean was told by the Zoning Administrator that he would not receive an extension of
the 2015 Permit because the new ordinance prohibits the filling of any property in the flood
hazard area except for the exact footprint of an existing building.
12. Mr. Bean claims that filling just the footprint of a mobile home is impracticable because
there is no way to place these homes atop an island of raised fill without filling the lot surrounding
the home so it can be driven back onto the site. Moreover, even if it were possible, the raised
footprint home would then be surrounded by flood waters during a storm event which would
strand residents on their “island” with no way of egress to safety.
13. Mr. Bean went to a hearing before the DRB on December 15, 2016. After the hearing was
closed, the Zoning Administrator handed a letter to the members of the DRB which she obtained
from VT ANR floodplain specialist Sacha Peeler about one month before the hearing. She was
attempting to submit the letter, which Mr. Bean had not seen, to the DRB after the hearing and
without providing him a copy.
14. The DRB explained that while no information has been provided as to the location of these
new lots, new structures are now prohibited in both the Floodplain (Zone AE) and River Corridor.
Town of Lyndon Zoning Bylaws § 11.6(c)(1), effective September 27, 2016 (the 2016 Bylaws).
While mobile homes may be replaced on existing lots or relocated to a less hazardous location,
new homes are not allowed on lots in flood hazard areas that have not historically contained a
home. 2016 Bylaws § 11.6(G).
15. The DRB denied the extension request in a decision issued on December 19, 2016.
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Analysis and Conclusions of Law
Applicant’s Statement of Questions contains one broad question: “whether the
application for extension of the construction completion date of the existing, unexpired and valid
permit 2015 conditional use permit should be granted.”
The Applicant argues that the extension should be granted for good cause pursuant to
Bylaws § 13.8. Applicant argues the project is essential to improve the safety of the residents
and the public at large, that the rights to the permit vested at the time of issuance under the old
ordinance and he has proceeded in good faith to fill and raise the preexisting mobile home park.
Applicant also suggests that a procedural defect in the proceeding below biased the DRB against
him.
We hear appeals from permit application decisions de novo, sitting in the place of the
decision-making body below—in this case, the DRB—and determine whether the application
should be approved. V.R.E.C.P. 5(g). The applicant has the burden to prove that the application
should be granted. In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 18, 195 Vt. 586.
Alleged Procedural Defect Below
Mr. Bean’s motion for summary judgment notes that the Zoning Administrator handed a
letter to the members of the DRB which she obtained from VT ANR floodplain specialist Sacha
Peeler about one month before the hearing, and that the Zoning Administrator was attempting
to submit the letter, which Mr. Bean had not seen, to the DRB after the hearing and without
providing him a copy. Mr. Bean believes that the actions of the Zoning Administrator were illegal,
improper and show bias.
We review appeals from municipals panel decisions de novo, and accordingly, absent due
process violations, we do not consider alleged procedural defects in the proceedings below. In re
Pelkey Final Plat Major Subd., No. 172-12-12 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. July 26,
2013) (Durkin, J.) (citing Chioffi v. Winooski Zoning Bd., 151 Vt. 9, 11 (1989) (“A de novo trial ‘is
one where the case is heard as though no action whatever has been held prior thereto.’”)
(quoting In re Poole, 136 Vt. 242, 245 (1978)); In re JLD Props. of St. Albans, LLC, 2011 VT 87, ¶¶
10–13, 190 Vt. 259 (holding that all but the most “structural” procedural errors are cured by
subsequent do novo review). That is, in a de novo appeal, we reach our own factual findings,
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based upon the evidence presented to the Court; we do not review or evaluate the evidence
presented to the DRB, nor the propriety of the DRB’s actions based upon the evidence it received.
We therefore conclude that because we review municipal appeals de novo, any procedural
defects that may have occurred in the proceeding below will be cured in this proceeding.
Good Cause
Applicant argues the extension should be granted for good cause because the Park is 60%
complete, Applicant has invested considerable sums of money to fill and raise the Park, and the
completion of the project will protect the safety of the residents of the Park as well as the public
during flooding events. The Town argues that Applicant cannot show good cause for an extension
because Applicant failed to diligently pursue the project, referencing Applicant’s ten-year delay
in filing for a renewal of his 2005 Permit and subsequent inaction after having been granted the
renewal.
The bylaws allow for a time extension to be granted for good cause. 2016 Bylaws § 13.8.
Because the bylaws do not define good cause we construe the bylaws according to the general
principles of statutory construction. See Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648
A.2d 864, 865 (1994). We are bound by the plain language of the bylaws, and we attempt first to
give effect to the plain meaning of the bylaws. In re Weeks, 167 Vt. 551, 554 (1998). If the
meaning is plain, we go no further. Id. In addition, when interpreting a municipal bylaw, courts
must give effect to the intent of the relevant legislative body. See Town of Killington v. State,
172 Vt. 182, 188 (2001). Since “land use regulation is in derogation of the common law,” if the
plain language of an ordinance is unclear, we generally resolve any ambiguity in favor of the
landowner. In re Miserocchi, 170 Vt. 320, 324 (2000). However, we may not interpret an
ordinance inconsistently with its enabling statute. Lemieux v. Tri-State Lotto Comm’n, 164 Vt.
110, 116–17 (1995).
Based on the plain language of the bylaws, we find the Town’s argument of diligent
pursuit unpersuasive. We conclude that the Bylaws means just what it says: that a permit can be
granted an extension for good cause, and diligent pursuit of the project is not required. Other
permitting regimes include diligent pursuit requirements to approve extensions. For instance,
Act 250 requires that the permittee have “made substantial progress toward completion within
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the three-year period.” 10 V.S.A. § 6091(b). Had the Town intended good cause to mandate
diligent pursuit, it could have included that as a requirement within its bylaw.
This still leaves the question of whether Applicant has demonstrated good cause that
would justify granting the extension request. The Town does not discuss whether safety qualifies
as good cause to grant an extension.
The 2005 Permit included three items: (1) fill; (2) closing a curb cut; and (3) adding two
units. The 2015 Permit application appeared to have the same three items, with the addition of
four new units. It is not clear if the four units in the 2015 Permit include the two units in the 2005
Permit. It is also unclear if any new units have been added to date, or if the curb cut has been
closed. In the present motion, Applicant makes a good cause argument only as to the fill. We
therefore do not address the additional units or the curb cut.
Because we resolve ambiguity in the bylaws in favor of the landowner, we interpret good
cause broadly to include safety. The completion of the project will serve to protect the safety of
the residents of the Park who must be evacuated from the Park during flooding events as well as
to protect the public from homes and hazardous tanks breaking loose and floating away during
flooding events. Failure to complete the project will negatively impact residents of the Park as
well as the public. Residents of the Park and the public should not be adversely impacted for
Applicant’s failure to complete the project. Accordingly, we conclude that because filling the Park
will protect the public and the Park’s residents, extending the permit meets the “good cause”
standard set out in Bylaws § 13.8.
Vested Rights
Vermont follows the minority rule for vested rights, intending to “create a bright line,
allowing identification of when rights vested without having to consider the extent to which the
landowner has made investments and taken actions in reliance on the permit.” In re Taft Corners
Assocs., Inc., 171 Vt. 135, 142 (2000). Under the minority rule, “a permit applicant gains a vested
right in the governing regulations in existence when a full and complete permit application is
filed.” Smith v. Winhall., 140 Vt. 178, 180 (1981). Even “an intervening change in regulations will
not strip a putative developer of the vested right to a permit that was actually approved under
prior regulations.” In re Keystone Development Corp., 186 Vt. 523, 524 (2009) (citing In re
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Preseault, 132 Vt. 471, 473-74, 321 A.2d 65, 66 (1974)). This conclusion ensures “the orderly
governance of development and . . . reasonable reliance on the process.” In re Taft Corners
Assocs., Inc., 160 Vt. 583, 593 (1993); (citing Levy, 152 Vt. at 143).
The Town argues that an extension of the completion date for Applicant’s zoning permit
would not be approved under the current flood hazard regulations. Applicant’s original permit,
the 2005 Permit, was approved on July 21, 2005. Applicant’s 2005 Permit was renewed on May
7, 2015. The approval was subject to conditions carried over from the original permit and the
scope of the project has not changed since the original application. Even though the Town
amended the bylaws in 2016, the intervening change made to the bylaws did not strip Applicant
of his vested rights because his permit was approved under prior bylaws. In re Keystone
Development Corp., 186 Vt. 523, 524 (2009) (citing In re Preseault, 132 Vt. 471, 473-74, 321 A.2d
65, 66 (1974)). Applicant has a vested right in the governing bylaws in existence when a full and
complete permit application is filed. Smith v. Winhall, 140 Vt. 178, 180 (1981). We conclude that
Applicant’s rights vested in 2005 when his completed permit application was filed. Because
Applicant acquired vested rights under the 2005 regulations, the current permit extension
remains vested under the 2005 regulations.
Conclusion
For the reasons set out above, Applicants’ Motion for Summary Judgment is GRANTED
for the filling activity but DENIED to the extent that the application involves adding any additional
units or changing any curb cuts.
Please see the enclosed notice of status conference. At this conference, parties should
be prepared to address whether this matter is complete or whether additional litigation is
requires and warranted on the issue of additional units or curb cuts.
Electronically signed on November 02, 2017 at 11:33 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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