Highland Development Co., LLC & JAM Golf, LLC Master Plan

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Highlands Development Co., LLC }
and JAM Golf, LLC } Docket No. 194-10-03 Vtec
Master Plan Application }
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Decision and Order on Motion for Summary Judgment
Appellant-Applicants Highlands Development Co., LLC and JAM Golf, LLC
(Applicants) appealed from a decision of the Development Review Board (DRB) of the
City of South Burlington, approving 297 of the 3581 residential dwelling units sought in
Applicants’ master plan application for a 450-acre Planned Unit Development (PUD).
Applicants are represented by Mark G. Hall, Esq. and William A. Fead, Esq.; the City of
South Burlington is represented by Steven F. Stitzel, Esq. and Amanda S.E. Lafferty,
Esq.2
This 2003 appeal had been placed on inactive status, at the request of the parties,
while issues related to the project involved in this application were litigated in the
Vermont Supreme Court in In re Appeal of JAM Golf, LLC, 2008 VT 110, 185 Vt. 201,
and were concluded on remand to this Court. In re: Appeal of JAM Golf, LLC, No. 69-
3-02 Vtec (Vt. Envtl. Ct. June 12, 2009) (Wright, J.); In re: Appeal of JAM Golf, LLC, No.
69-3-02 Vtec (Vt. Envtl. Ct. Aug. 21, 2009) (Wright, J.). Applicants have now moved for
summary judgment, asking the Court to invalidate several provisions of the 2003 South
Burlington Land Development Regulations (2003 Regulations) as unconstitutionally
vague, and to approve the master plan proposal in full, that is, to approve all of the
1 But see footnote 5, below.
2 In addition, Marie Ambusk has informational status in this appeal, but has not
entered an appearance as a party.
1
residential dwelling units now proposed by Applicants rather than the 297 units
approved by the DRB in its September 25, 2003 decision (DRB Master Plan Decision).
The following facts are undisputed unless otherwise noted.
Procedural History of VNCC Planned Unit Development
Applicants own a 450-acre parcel of land located in the Southeast Quadrant
zoning district of the City of South Burlington. Beginning in 1996, Applicants and their
predecessors have developed a planned development on that parcel known as the
Vermont National Country Club (VNCC). The development consists of an eighteen-
hole golf course, a clubhouse and associated facilities, and thirteen residential
developments, referred to in the DRB Master Plan Decision and in this decision as
“development areas.”3
The 2003 Regulations require applicants seeking to develop more than ten
dwelling units in the Southeast Quadrant zoning district to obtain approval of an
overall master plan for the development. 2003 Regulations § 15.07(B)(1). A master plan
is defined as a “plan intended to guide the arrangement of developed areas and
undeveloped areas and streets within a land development project.” Id. art. 2. In
addition, because each individual VNCC development area involves land within a
Planned Unit Development, each individual development area must receive
subdivision or site plan approval from the DRB. See id. §§ 14.02–.09 (governing site
plan approval); id. § 15.08 (governing major subdivision and PUD approval).
Under the 2003 Regulations, Applicants seeking master plan approval for a
development under § 15.07 may combine these two processes and apply concurrently
3
Some of the proposed development areas consist solely of subdivisions of single-
family lots. Other proposed development areas consist of single, duplex, or triplex
townhouse units, or multiple-unit buildings, without associated lots. Some of the
development areas include both subdivision lots, and townhouse or apartment units
without associated lots.
2
for preliminary approval of any portion of the development that is subject to the master
plan. See id. § 15.07(C)(2) (“The Master Plan application may . . . be combined with
preliminary site plan or preliminary subdivision plat review for a discrete portion or all
of the property proposed for development.”).4
The 2003 Regulations were the first zoning or land use ordinance in South
Burlington to incorporate provisions requiring approval of a master plan for certain
developments. Therefore, although a large portion of the VNCC had already been
approved under previous regulations and had been constructed, the requirement that
Applicants obtain master plan approval was triggered when Applicants sought
approval of more than ten additional dwelling units within the VNCC after the 2003
Regulations took effect. Accordingly, in 2003 Applicants submitted Master Plan
Application No. MP-03-01 (the master plan application) to the DRB, seeking master
plan approval for the entire VNCC PUD in connection with preliminary plat or site plan
applications for several of the residential development areas within the PUD.
Between 1996 and the submission of the master plan application in 2003, the golf
course itself, the clubhouse and associated facilities, and the following residential
development areas had received prior subdivision or site plan approval from the DRB
and had been constructed, or were under construction, as of 2003: the Four Sisters Road
development area (37 residential units); the Nowland Farm Road development area,
which is labeled on the site plan table as “Lots 39–42” (4 residential units); the
Economou Farm Road development area (23 residential units); the Fairway Drive
development area (36 residential units); the Holbrook/Tabor development area (26
4
The DRB Master Plan Decision approving the master plan application, as well as the
parties’ memoranda in the present appeal, analyzes each development area separately
for its compliance with the master plan criteria, even though the master plan is defined
as a single, unified proposal; this decision follows the same methodology.
3
residential units); and the Golf Course Road development area (117 residential units5).
Although these six developments had received prior DRB approval, the master plan
application included them, as required by § 15.07(B)(1) of the 2003 Regulations.
Concurrently with the master plan application, as allowed under § 15.07(C)(2),
Applicants submitted preliminary approval applications for two other development
areas: the Water Tower Hill development area, which is labeled on the site plan table as
“Lots 175–179” (9 residential units), and the Old Schoolhouse Road development area
(15 residential units). These two development areas received preliminary approval
concurrently with the master plan approval.6
In addition to the eight development areas discussed above, the master plan
application proposed five development areas that had not received preliminary
approval from the DRB for some or all of the number of units sought by Applicants in
the master plan application for each development area. These five areas are: the
5
Some confusion has been created by the fact that the master plan application lists the
Golf Course Road development area as having 118 units (32 lots and 86 townhome
units), yet the DRB Master Plan Decision refers to it as having 117 approved units. DRB
Master Plan Decision, at 10. It is possible that this discrepancy resulted from the
reconfiguration of lots necessary to provide the development driveway for the Taft
Subdivision development area. See Appeal of JAM Golf, No. 69-3-02 Vtec, slip op. at 3
(Vt. Envtl. Ct. June 29, 2006). Neither party has alluded to or resolved this factual
discrepancy in this appeal; however, as Applicants do not challenge it, it is not a
material disputed fact. This decision will therefore treat the Golf Course Road
development area as having 117 units, which reduces the total number of units sought
by Applicants in this master plan appeal to 357, rather than the 358 units originally
sought in the master plan application.
6 The DRB granted preliminary approval for the Water Tower Hill development area
(Application Nos. SD-03-24 and SD-03-26) and the Old Schoolhouse Road development
area (Application Nos. SD-03-25 and SD-03-27) concurrently with its decision on the
master plan. The DRB incorporated by reference its decisions regarding the
applications for those two development areas into the Master Plan Decision. DRB
Master Plan Decision, at 2.
4
Clubhouse development area7 (8 proposed residential units); the Park Road
development area (18 proposed residential units); the Heatherfields/Lot 108
development area (49 proposed residential units); the Old Cross Road development
area (5 residential units); and the Taft Subdivision development area, which is labeled
on the site plan table as “13th Hole Subdivision” (10 proposed residential units).
On September 25, 2003, the DRB issued its decision granting approval, with
conditions, of 297 of the residential units proposed in Applicants’ master plan
application. DRB Master Plan Decision, at 9. The DRB Master Plan Decision evaluated
the proposed master plan under the general master plan criteria applicable to all
applications, see 2003 Regulations §§ 15.18(A)(1)–(10), as well as under the master plan
criteria applicable only to the Southeast Quadrant zoning district, see id. §§ 15.18(B)(1)–
(7).
In its decision, the DRB affirmed its previous findings and granted master plan
approval for the six development areas that had been approved prior to the submission
of the master plan application. DRB Master Plan Decision, at 11–12.8 The DRB also
granted master plan approval for the twenty-four residential units in the two
development areas that had concurrently obtained preliminary approval: nine
residential units in the Water Tower Hill development area and fifteen residential units
in the Old Schoolhouse Road development area. Id. The DRB determined that all eight
of these development areas, comprising 267 residential units, satisfied all applicable
7
This residential area is distinct from the clubhouse proper and its associated facilities;
the Clubhouse residential development area is named for its location on the east side of
Dorset Street, across from the clubhouse proper.
8
While the DRB Master Plan Decision does not refer in its text to the four single-family
lots in the Nowland Farm Road development area, the table at page 10 of the decision
identifying each master plan development area does include those units, and the total
number of units approved in the decision also includes those four lots.
5
master plan criteria. Id. at 6.9 No issues as to the master plan approval of these
development areas have been raised in this appeal.
The remaining five development areas—the Clubhouse, Park Road,
Heatherfields/Lot 108, Old Cross Road, and Taft Subdivision development areas—were
either denied in part or denied in their entirety by the DRB in the Master Plan Decision.
Id. at 11–12. These five development areas, consisting of a total of ninety proposed
residential units, are the development areas that Applicants initially appealed to this
Court in this appeal. Each of these five areas is discussed in further detail below.
Procedural History of Taft Subdivision Development Area Litigation
In 2001, prior to the 2003 submission of the master plan application, Applicants
had submitted subdivision application No. SD-01-42, seeking preliminary plat approval
for the ten-lot Taft Subdivision development area. That subdivision application was
denied by the DRB; on appeal it was also initially denied by the Environmental Court
for failing to satisfy §§ 26.151(g) and (l) of the 2002 Regulations. Appeal of JAM Golf,
No. 69-3-02 Vtec, slip op. at 4–5 (Vt. Envtl. Ct. June 12, 2006).
On appeal, the Vermont Supreme Court invalidated § 26.151(g) of the 2002
Regulations, which required Planned Residential Developments to “protect important
natural resources,” because that section was “essentially standardless” and therefore
“violate[d] property owners’ due process rights.” Appeal of JAM Golf, 2008 VT 110,
¶¶ 13–14. The Supreme Court also invalidated § 26.151(l) of the 2002 Regulations,
9The previous site plan or subdivision approvals for the Four Sisters Road, Nowland
Farm Road, Economou Farm Road, Fairway Drive, Holbrook/Tabor, and Golf Course
Road development areas were granted under the 2002 South Burlington Zoning
Regulations (2002 Regulations) or an earlier set of regulations. In the Master Plan
Decision, the DRB nevertheless granted master plan approval for these development
areas under the 2003 Regulations without analyzing each area, that is, the DRB
determined that these six development areas met all the master plan criteria because
they had already received prior approval under earlier zoning ordinances.
6
which required conformance with the City’s Comprehensive Plan, as applied to the
wildlife corridor and landscape feature issues decided in that case, because as to those
issues the Comprehensive Plan itself contained “no specific standards to guide
enforcement” and was “too ambiguous to be enforceable.” Id. at ¶¶ 17–19.10
Applying the Supreme Court’s analysis on remand, this Court invalidated the
portion of § 26.151(i) of the 2002 Regulations that required proposed projects to
“provide convenient allocation and distribution of common open space in relation to
proposed development,” because that portion of the provision was unconstitutionally
“standardless and vague.” Appeal of JAM Golf, No. 69-3-02 Vtec, slip op. at 5–6 (Vt.
Envtl. Ct. June 12, 2009). On the other hand, the Court upheld § 26.151(h) of the 2002
Regulations, which required that “there will be no undue adverse effect on the scenic or
natural beauty of the area” and that “the proposed development will be aesthetically
compatible with the surrounding developed properties,” because that provision used
language comparable to Act 250 Criterion 8, 10 V.S.A. § 6086(a)(8), and was therefore
“not too vague to be enforceable.” Id. at 6–10. This Court’s subsequent decision on the
merits of the proposal determined that the Taft Subdivision satisfied the remaining
applicable subdivision regulation, § 26.151(h) of the 2002 Regulations, and therefore
granted preliminary plat approval for that development area. Appeal of JAM Golf, No.
69-3-02 Vtec (Vt. Envtl. Ct. Aug. 21, 2009).
Because the ten-unit Taft Subdivision has now received preliminary plat
approval, the ten units proposed in the master plan application for that development
area also satisfy the requirements for master plan approval. That is, the Taft
10However, it is important to note that the Supreme Court did determine that such a
provision, requiring conformance with a comprehensive plan, was a permissible
method of regulation. See id. at ¶¶ 16–19 (“[C]ities may require subdivisions to
conform to their city plan” as long as there is a “specific policy set forth in the plan,”
and the policy is “stated in language that is clear and unqualified, and creates no
ambiguity.” (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520)).
7
Subdivision preliminary plat approval is essentially incorporated into the master plan
approval and that development area is approved in full in the master plan, just as the
DRB did with the six development areas that had received preliminary approval under
previous regulations prior to the submission of the master plan application. See DRB
Master Plan Decision, at 11 (stating that the DRB “affirms its prior positive findings of
fact and conclusions regarding the six (6) [areas] previously approved” under prior
regulations, and granting those areas master plan approval in full). Therefore, like
those six development areas, as well as the Water Tower Hill and Old Schoolhouse
Road development areas, the Taft Subdivision development area is no longer at issue in
the present appeal.
Development Areas at Issue in this Appeal
As discussed above, the Four Sisters Road, Nowland Farm Road, Economou
Farm Road, Holbrook/Tabor, Golf Course Road, Water Tower Hill, and Old
Schoolhouse Road development areas that were approved in the DRB Master Plan
Decision, together with the Taft Subdivision development area, are not at issue in this
appeal. The remaining four development areas proposed in the master plan application
and at issue in this appeal are the Clubhouse, Park Road, Heatherfields/Lot 108, and
Old Cross Road development areas. These four development areas account for eighty
of the residential units proposed in the master plan application, thirty of which were
granted master plan approval by the DRB. In this de novo proceeding, Applicants seek
master plan approval of all eighty units proposed for these four development areas, that
is, all fifty units that were disapproved by the DRB as well as the thirty units that were
granted master plan approval.
8
Clubhouse and Park Road Development Areas
In evaluating the master plan as a whole for compliance with §§ 15.18(A)(4), (5),
(6), and (10), and §§ 15.18(B)(1) through (4), of the 2003 Regulations, the DRB stated that
the proposed master plan layout met each of those criteria, with the exception of the
Taft Subdivision, Old Cross Road, and a portion of the Heatherfields/Lot 108
development areas. DRB Master Plan Decision, at 6. This statement implies that at least
the layout of the proposed Clubhouse and Park Road development areas met the
criteria in §§ 15.18(A)(4), (5), (6), and (10), and §§ 15.18(B)(1) through (4), of the 2003
Regulations. Nevertheless, the DRB Master Plan Decision limited the number of
residential units approved for both the Clubhouse and the Park Road development
areas. Id. at 11–12.
The Clubhouse development area, consisting of former lots 169-172, but labeled
on the site plan table as “Lots 169–174,” proposed eight residential units in four duplex
buildings. According to the site plan submitted by Applicants, this development area
had previously received approval for four single family lots. See also DRB Master Plan
Decision, at 3 (stating that the Clubhouse development area was previously approved
for four “units”). In the Master Plan Decision, the DRB approved only six of the eight
units proposed in the master plan application, “due to the presence of wetlands
constraints and the high visibility of this property.” Id. at 11.11
The Park Road development area, consisting of former lots 173 and 174, but not
separately listed on the site plan table, proposed eighteen residential units in six triplex
11Even though the DRB omitted the Clubhouse development area from the list of
development areas whose layout failed to meet the criteria in §§ 15.18(A)(4), (5), (6), and
(10), and §§ 15.18(B)(1) through (4), the DRB’s limitation of the number of units due to
“wetlands constraints” and due to the “high visibility” of the property suggests that the
applicable regulatory sections may be §§ 15.18(A)(4) and (5), related to protection of
wetlands, and § 15.18(B)(3), related to a project’s visual compatibility with the area.
9
buildings. Id. at 3.12 The site plan submitted by Applicants shows that the portion of
this development area composed of former lots 173 and 174 had previously been
approved as two single-family lots. The DRB decision approved only twelve of the
eighteen proposed residential units, without stating which buildings or units were
approved, or whether some different configuration of units would be required. See id.
at 12 (stating that the “Park Road area is approved for development of a maximum of
twelve (12) residential units in any configuration”). The DRB approval of the twelve
residential units for the Park Road development area was issued subject to a condition
requiring Applicants to obtain access over the City-owned land between Park Road and
the project property. Id. The DRB omitted the Park Road development area from the
list of development areas whose layout failed to meet the criteria in §§ 15.18(A)(4), (5),
(6), and (10), and §§ 15.18(B)(1) through (4), id. at 6, thereby implying that this area’s
layout met all the applicable criteria. Nevertheless, the DRB did not cite any specific
regulatory section, or state any other reason, in reducing the number of units in the
Park Road development area from eighteen to twelve. Id. at 6, 12.
Old Cross Road and Heatherfields/Lot 108 Development Areas
The Old Cross Road development area, labeled on the site plan table as “14th
Hole Subdivision,” proposed five single-family residential lots, none of which had
previously been proposed or approved. See DRB Master Plan Decision, at 3 (listing the
Old Cross Road development area as one that had “no existing, valid City preliminary
12 The site plan submitted by Applicants in conjunction with their master plan
application appears to show seven triplex residential buildings (as well as a single
unlabeled building), one of which appears to extend off the project property to the
north, between the project boundary and Park Road. Material facts are in dispute, or at
least have not been provided to the Court, regarding the layout of the eighteen
residential units in the Park Road development area for which Applicants seek
approval in the present proceeding, as well as the layout of the twelve residential units
approved by the DRB.
10
plat approval at the time the Master Plan application was filed”). The DRB approved
none of the five proposed residential units for the Old Cross Road development area.
Id. at 12.
The Heatherfields/Lot 108 development area proposed forty-nine residential
units in five nine-unit buildings and four townhouses.13 The DRB approved only
twelve of the forty-nine proposed residential units for the Heatherfields/Lot 108
development area, and required that all twelve of those units be placed westerly of the
buffer for a stream running through that development area, leaving the easterly portion
of that area undeveloped. Id. at 12.14
The DRB decision stated that, other than the twelve units in the limited area the
DRB approved for the Heatherfields/Lot 108 development area, the proposals for the
Heatherfields/Lot 108 and the Old Cross Road development areas, considered together
with the Taft Subdivision development area, did not satisfy §§ 15.18(A)(4), (5), (6), and
(10), and §§ 15.18(B)(1) through (4), of the 2003 Regulations. Id. at 6. The DRB Master
Plan Decision discussed the Old Cross Road and the Heatherfields/Lot 108
development areas, together with the now-approved Taft Subdivision, as being “within
the corridor formed by the eastern property boundary and the Golf Course/Park Road
[development] area.” Id. The DRB decision stated that development of all three of
these development areas was inconsistent “with the conservation of wetlands, streams,
13 This development area’s 1996 preliminary plat approval for thirty-one units had
expired, requiring Applicants to submit a new application.
14 The DRB determined that development within the 4.6-acre Heatherfields/Lot 108
development area should be limited to the area west of a line “one hundred (100) linear
feet west of the center line of the stream” located in the area. DRB Master Plan
Decision, at 12. Material facts are in dispute, or at least have not been provided to the
Court, regarding how the DRB calculated the number of units it allowed in the
approved western portion of that development area. In any event, the issue of the
number and placement of residential units in this development area remains for the
hearing on the merits of this case.
11
and wildlife habitat and unique natural features”15; that the proposed development of
these three areas would “adversely affect[] the VNCC’s visual compatibility with its
surroundings”16; and that the development of these three areas would have a
“pronounced adverse impact on the City’s ability to keep open spaces arranged in a
manner that maximizes contiguous open spaces and buffers.”17 Id. at 6–7. In addition,
specifically with regard to the five-lot subdivision proposed for the Old Cross Road
development area, the DRB decision stated that the proposal “interferes with an
important wildlife habitat in the meaning of the [2003 Regulations] and Comprehensive
Plan, and does not retain the connectivity between larger lots to the south and the City’s
open space parcels to the north.” Id. at 12.
Standards Applicable to the Present Proceeding
In a de novo proceeding, “the Court sits in place of the [DRB] to consider what
was before the [DRB], applying the substantive standards that were applicable before
the [DRB].” In re: Kibbe Zoning Permit, No. 173-8-07 Vtec, slip op. at 1–2 (Vt. Envtl. Ct.
Nov. 6, 2008) (Wright, J.) (citing V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h)). As the present
matter is de novo before the Court, and the Statement of Questions raises the issue of
the appropriate number of units for each of the four development areas on appeal, it
will be for this Court to determine whether each of the contested development areas
meets the applicable master plan criteria and to determine the number of units in each
area that should be approved in the master plan. These issues are before the Court even
for the layout of the Clubhouse and Park Road development areas, which the DRB
15 Although the DRB decision did not cite specific sections of the 2003 Regulations, this
language is reflected in §§ 15.18(A)(4) and (10), and in §§ 15.18(B)(1), (2), and (3).
16
Although the DRB decision did not cite specific sections of the 2003 Regulations, this
language is reflected in §§ 15.18(A)(5) and (10).
17 Although the DRB decision did not cite specific sections of the 2003 Regulations, this
language is reflected in §§ 15.18(A)(6) and (10), and §§ 15.18(B)(1), (2), and (4).
12
implicitly concluded met all applicable master plan criteria, because the DRB decision
nevertheless reduced the number of allowable lots in these two areas.
In this summary judgment motion, Applicants challenge §§ 15.18(A)(4), (5), (6)
and (10), and §§ 15.18(B)(1) through (4), of the 2003 Regulations, asserting that each
provision is unconstitutionally vague and unenforceable, based on the reasoning
articulated by the Vermont Supreme Court in Appeal of JAM Golf, 2008 VT 110.18
Applicants ask the Court to strike down each of the challenged provisions, and
therefore to approve the master plan application in full under any remaining applicable
provisions.
When interpreting and applying administrative or municipal regulations, “the
Court approaches regulatory construction in the same manner as statutory
interpretation.” In re Sheffield Wind Project, No. 252-10-08 Vtec, slip op. at 3 (Vt. Envtl.
Ct. Sept. 29, 2009) (Wright, J.) (citing In re Williston Inn Group, 2008 VT 47, ¶ 14, 183 Vt.
621). When construing a statute or regulation, the Court must begin with a
presumption of constitutionality. See Hunter v. State, 2004 VT 108, ¶ 31, 177 Vt. 339(stating that courts “begin with an assumption that the legislation is constitutional”
(citing Benning v. State, 161 Vt. 472, 481 (1994))). Generally, statutes and regulations
“should be construed to avoid constitutional difficulties, if possible,” In re G.T., 170 Vt.
507, 517 (2000), because a court ought “not decide constitutional questions
18The ordinance provisions considered by the Supreme Court and this Court in the Taft
Subdivision appeal, see Appeal of JAM Golf, 2008 VT 110; Appeal of JAM Golf, No. 69-
3-02 Vtec (Vt. Envtl. Ct. June 12, 2009), were from § 26.151 of the 2002 Regulations,
rather than the 2003 Regulations at issue in the present appeal, because the earlier
regulations were in effect when the Taft Subdivision application was filed. The DRB
reviewed the present application under § 15.18 of the 2003 Regulations, covering PUDs,
Subdivisions, and Master Plans, because the 2003 Regulations were in effect when the
master plan application was submitted. However, the same version of the City’s
Comprehensive Plan, referenced in both the 2002 and 2003 Regulations, was in effect
when both applications were filed.
13
unnecessarily.” In re Picket Fence Preview, 173 Vt. 369, 375 (2002) (citing State v.
Clarke, 145 Vt. 547, 551 (1985)). Therefore, where a reasonable alternative for resolution
exists, the court will avoid overturning a regulation on constitutional grounds. See
Central Vt. Ry., Inc. v. Dep’t of Taxes, 144 Vt. 601, 604 (1984) (stating that a court will
avoid construction that “may lead to the unconstitutionality of the statutory provision if
a reasonable alternative exists” (citing Hadwen, Inc. v. Dep’t of Taxes, 139 Vt. 37, 39
(1980))).
In order to survive a constitutional challenge for vagueness, “a zoning ordinance
must be shown to articulate standards that sufficiently guide municipal decisions and
give notice to those seeking an understanding of what is regulated.” In re Irish
Construction Application, No. 44-3-08 Vtec, slip op. at 6 (Vt. Envtl. Ct. Nov. 2, 2009)
(Durkin, J.) (citing In re Handy, 171 Vt. 336, 344–45 (2000)). This standard similarly
applies to provisions of a municipal plan that are made applicable to a project by an
ordinance or regulation. See In re Times & Seasons, LLC, 2008 VT 7, ¶¶ 21–22, 183 Vt.
336 (Where a specific provision “requires compliance with a duly adopted town or
regional plan,” that plan must set forth a “specific policy” that is “stated in language
that is clear and unqualified, and creates no ambiguity.” (quoting John A. Russell Corp.,
2003 VT 93, ¶ 16)). If an ordinance or applicable municipal plan provision is completely
devoid of standards specific enough to guide decisionmakers and applicants in
analyzing a proposal, thereby “leading to ‘unbridled discretion’” by the reviewing
body, such an ordinance violates the landowner’s due process rights, and therefore
must be struck down as unconstitutionally vague. Appeal of JAM Golf, 2008 VT 110,
¶ 13–14.
On the other hand, although municipal ordinances “should not leave the door
open to unbridled discretion,” and therefore must articulate standards to guide
decisionmakers, they should also “be general enough to avoid inflexible results.”
Appeal of JAM Golf, No. 69-3-02 Vtec, slip op. at 3 (Vt. Envtl. Ct. June 12, 2009) (quoting
14
Town of Westford v. Kilburn, 131 Vt. 120, 125 (1973)). Therefore, if a municipal
ordinance contains language that is vulnerable to a constitutional challenge on the basis
of its vagueness, a court will look to “external sources to interpret and clarify [the]
provision” in an effort to avoid a finding of unconstitutionality. Id. at 4, n.2. In doing
so, courts may look to “the entire ordinance, not just the challenged subsection,” id.
(quoting In re Pierce Subdivision Application, 2008 VT 100, ¶ 20, 184 Vt. 365), the
“historical usage” of the challenged language, id. at 4 (citing Handy, 171 Vt. at 348–49),
and “relevant precedents and prior legislation” that may provide specificity in
interpreting the provision. Id. (quoting Heffernan v. Harbeson, 2004 VT 98, ¶ 9, 177 Vt.
239).
As seen in the analysis applied by the Vermont Supreme Court in Appeal of JAM
Golf, 2008 VT 110, a regulatory provision must provide standards by which the DRB, or
the Court in a de novo appeal, can perform two functions in determining whether a
particular proposal satisfies the regulation. First, the regulatory provision must be
specific enough to allow the decisionmaker clearly to identify the resources or features
to be protected. Second, 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.
An example of a regulatory provision analyzed in Appeal of JAM Golf that failed
to identify the resource to be protected is the reference to “scenic views” found in the
Comprehensive Plan, made applicable through § 26.151(l) of the 2002 Regulations. See
2008 VT 110, ¶ 18. The Supreme Court determined that, as it applied to the view of
landscape features at issue regarding the Taft Subdivision, the Plan unconstitutionally
left the determination of what constituted a “scenic view” to the “unfettered discretion”
of the reviewing body. Id. See also id. (stating that “the city plan fails to define what in
particular is to be protected”).
An example of a regulatory provision analyzed in Appeal of JAM Golf that failed
15
adequately to describe the appropriate level of protection for an identified resource or
feature is § 26.151(g) of the 2002 Regulations, which simply required the design of a
development to “protect” certain features. See id. at 14 (stating that the “language of
the regulations offers no guidance as to what degree of preservation short of
destruction is acceptable”). That is, even if the resource or feature under consideration
is clear—for example, a clearly mapped stream or wetland—a regulatory provision is
unconstitutionally vague if it provides no standards “to apply in determining what
would constitute a failure to ‘protect’ the listed resources” or “as to how or when
development should be restricted to accomplish protection.” Id. ¶¶ 13, 18.
In determining whether the challenged regulatory provisions are
unconstitutionally vague, the Court must therefore analyze, for each provision, both
whether it defines what in particular is to be protected, and whether it provides
standards for the Court to apply as to the required degree or level of protection.
Regulatory Provisions Regarding Wetlands, Streams, Wildlife Habitat,
and Other Natural Features
Section 15.18(A)(4) of the 2003 Regulations requires that:
The project’s design respects and will provide suitable protection to
wetlands, streams, wildlife habitat as identified in the Open Space
Strategy,[19] and any unique natural features on the site.[20] In making this
finding the DRB shall utilize the provisions of Article 12 of these
Regulations related to the wetlands and stream buffers, and may seek
comment from the Natural Resources Committee with respect to the
project’s impact on natural resources.
19
The summary judgment materials do not appear to include a copy of the Open Space
Strategy referred to in these subsections of the 2003 Regulations.
20 The various sections of 2003 Regulations § 15.18(A) contain phrases emphasized in
bold type in the original, as shown in the quotation of each such section discussed in
this decision.
16
Section 15.18(B)(3) of the 2003 Regulations requires that:
Existing natural resources on each site shall be protected through the
development plan, including streams, wetlands, floodplains, wildlife
habitat and corridors including those areas identified in the South
Burlington Open Space Strategy, and special natural and/or geological
features such as mature forests, headwaters areas, and prominent ridges.
The DRB denied the Old Cross Road development area and the easterly portion
of the Heatherfields/Lot 108 development area, as well as the Taft Subdivision
development area, on the basis that development of these three areas, considered
together, was “not consistent with” the “conservation” of “wetlands, streams, wildlife
habitat and unique natural features.” DRB Master Plan Decision, at 6. However,
although the DRB decision refers to the term “unique natural features,” the decision
does not identify any specific “unique natural feature” in the Old Cross Road or
Heatherfields/Lot 108 development areas that would require consideration under
§ 15.18(A)(4). With regard to the Old Cross Road development area, the DRB stated
that its development “interferes with an important wildlife habitat in the meaning of
the [2003 Regulations] and the Comprehensive Plan.” Id. at 12. The DRB also based its
approval of only six of the eight units proposed for the Clubhouse development area, in
part, on “the presence of wetlands constraints.” Id. at 11.
The provision in the 2002 Regulations analogous to §§ 15.18(A)(4) and (B)(3) was
§ 26.151(g), which required the proposed project to “protect important natural resources
including streams, wetlands, scenic views, wildlife habitats, and special features such as
mature maple groves or unique geological features.” The Vermont Supreme Court
struck down this section on the basis that “it provides no standards for the court to
apply in determining what would constitute a failure to ‘protect’ the listed resources”
and that its language “offers no guidance as to what degree of preservation short of
destruction is acceptable.” Appeal of JAM Golf, 2008 VT 110, ¶¶ 13–14.
17
Section 15.18(B)(3) of the 2003 Regulations, and § 15.18(A)(4) only with regard to
unique natural features,21 are as lacking in standards as was the section of the 2002
Regulations struck down by the Supreme Court. Regardless of whether they
sufficiently define which resources are to be protected, they fail to state or to refer the
reader to standards for the court to apply in determining what would constitute a
failure to protect those resources.22
On the other hand, at least as to wetlands and stream buffers, § 15.18(A)(4)
incorporates by reference other detailed standards, from Article 12 of the 2003
Regulations, that adequately specify the resource to be protected and define the
required level of protection. Article 12 of the 2003 Regulations designates the surface
waters in South Burlington which are to be protected, including wetlands and stream
buffers, and provides detailed specific standards for protection of those features.
As to wildlife habitat, § 15.18(A)(4) incorporates by reference the City’s Open
Space Strategy, which has not been provided to the Court in connection with the
present motions. Without that document, material facts are in dispute, or at least have
not been provided to the Court, to allow the Court to determine whether the Open
Space Strategy identifies the “wildlife habitat” that must be protected and defines what
21 The DRB decision does not specify, and the City does not argue in its memoranda,
whether any (or which) unique natural features may be located in the Old Cross Road
or Heatherfields/Lot 108 development areas. If no unique natural features are in fact
sought to be protected with regard to the development areas remaining at issue in this
appeal, then the Court is precluded from reaching the constitutional issue as to this
phrase of § 15.18(A)(4). See discussion at pp. 13–14, above.
22
No party suggests that the remaining mechanism provided in § 15.18(A)(4), allowing
the DRB, and hence this Court, to obtain comments from an advisory committee, can
cure an otherwise vague regulatory provision. While an advisory committee may be
useful in helping a decisionmaker to determine whether a particular project meets a
stated standard, see 24 V.S.A. § 4403(6), such a committee cannot be delegated
standardless discretion, just as a DRB or a court is precluded from exercising such
standardless discretion. Handy, 171 Vt. at 348–49.
18
level of protection of wildlife habitat is “suitable” in this location.
Therefore, summary judgment is granted to the City that § 15.18(A)(4) is
sufficiently definite to be applied by the Court to the contested development areas with
respect to the protection of wetlands and stream buffers. Summary judgment is granted
to Applicants that § 15.18(B)(3) is too vague to be applied by the Court to the contested
development areas, and that, if any of the areas contain “unique natural features,”
§ 15.18(A)(4) is too vague to be applied by the Court to the contested development areas
with respect to the protection of unique natural features. Summary judgment is denied
as to whether § 15.18(A)(4) is sufficiently definite to be applied by the Court to the
contested development areas with respect to the protection of wildlife habitat, as
material facts regarding the Open Space Strategy have not been provided to the Court.
Regulatory Provisions Regarding Contiguity of Open Space
and Stream Buffers
Section 15.18(A)(6) of the 2003 Regulations requires that:
Open space areas on the site have been located in such a way as to
maximize opportunities for creating contiguous open spaces between
adjoining parcels and/or stream buffer areas.
Section 15.18(B)(4) of the 2003 Regulations requires that:
Consistent with [§ 15.18(B)(1) through (3)], dedicated open spaces shall be
designed and located to maximize the potential for combination with
other open spaces on adjacent properties.
Both of these sections focus on preserving the potential for creating contiguity of
open space on the project property with open space on adjacent property. Neither
section is analogous to § 26.151(i) of the 2002 Regulations, dealing with the “convenient
allocation and distribution of common open space in relation to proposed
development,” which was struck down by this Court in Appeal of JAM Golf, No. 69-3-
02 Vtec, slip op. at 3 (Vt. Envtl. Ct. June 12, 2009).
19
Rather, in applying §§ 15.18(A)(6) and (B)(4) of the 2003 Regulations, the DRB (or
the Court in this de novo appeal) can determine from the plain language of these
sections both what is the resource to be protected, and what degree of protection is
required. The resource to be protected is the potential or opportunity for future
contiguity of open space on the project property with open space, including stream
buffers, on adjacent property. The degree of protection is to “maximize” that potential,
that is, to ensure to the greatest extent possible that development and open space on the
site are located so as to avoid blocking the opportunity to link such open space with
open space on adjacent property.
This specific regulatory technique of preserving the opportunity for contiguity
with adjoining properties is well settled in Vermont, as is the more general regulatory
technique of preserving the future “potential” of a feature or resource. For example, a
subdivision ordinance, such as § 401.1(a) of the South Burlington Subdivision
Ordinance in effect prior to the 2003 Regulations,23 may require that streets in a
proposed subdivision be placed so as to continue streets from existing adjoining
subdivisions, and to allow the projection of streets through adjoining property not yet
developed. See also 24 V.S.A. § 4418(1)(C) (“In order to guide community settlement
patterns and to ensure the efficient extension of services, utilities, and facilities as land
is developed,” subdivision bylaws shall contain “[s]tandards for the design and
configuration of parcel boundaries and location of associated improvements necessary
to implement the municipal plan and achieve the desired settlement pattern for the
neighborhood, area, or district in which the subdivision is located.”).
Similarly, Act 250 criteria 9(B) and 9(C), regarding soils for agriculture or
commercial forestry, address the preservation of the agricultural or forestry “potential”
23Although the former South Burlington Subdivision Ordinance has not been provided
to the Court in connection with this appeal, it, like the former Zoning Regulations, was
provided in evidence in Appeal of JAM Golf, Docket No. 69-3-02 Vtec.
20
of such soils, and require an analysis of the effect of proposed development on the
agriculture or forestry “potential” of adjoining lands. See 10 V.S.A. §§ 6086(a)(9)(B)
(requiring an analysis of whether a proposal “will not result in any reduction in the
agricultural potential of the primary agricultural soils”); id. § 6086(a)(9)(C) (requiring an
analysis of a proposal “for development or subdivision of productive forest soils” to
determine if the proposal “will not result in any reduction in the potential of the those
soils for commercial forestry”).
Accordingly, summary judgment is granted to the City that §§ 15.18(A)(6) and
(B)(4) are sufficiently definite to be applied by the Court to the contested development
areas.
Regulatory Provisions Regarding Visual Compatibility and Aesthetics
Section 15.18(A)(5) of the 2003 Regulations requires that:
The project is designed to be visually compatible with the planned
development patterns in the area, as specified in the Comprehensive Plan
and the purposes of the zoning district(s) in which it is located.
In order to be upheld, this provision must provide sufficient standards for the
Court to apply, first, to identify what the “planned development patterns” are in the
area by looking to the Plan and the purposes of the zoning district, and, second, to
determine whether the proposed project will be “visually compatible” with those
planned development patterns.
The development patterns referenced in the purpose statement in § 9.01, together
with the development patterns that are described as planned for the Southeast
Quadrant in Chapter VII of the Comprehensive Plan, are sufficiently specific to identify
the development patterns with which the proposed project must be “visually
21
compatible.”24
The “purpose” section of the 2003 Regulations for the Southeast Quadrant
zoning district, § 9.01, refers to the “open character” or “open space character” of the
district, and to the “location and clustering” of buildings and lots so as to preserve that
character. The Comprehensive Plan articulates the development patterns planned for
the future of the Southeast Quadrant.25 It describes the proposed patterns, which are
the features that must be identified by a reviewing body under § 15.18(A)(5). Most
importantly, the plan includes a development map entitled the “SEQ Goals Based
Plan,”26 which “identifies areas within the Quadrant which are appropriate for
development and applies desirable neighborhood densities to those areas.” Id. at 49;
see id. at app. E (setting forth the SEQ Goals Based Plan map). The SEQ Goals Based
Plan map, together with the text of the Comprehensive Plan related to the Southeast
Quadrant, gives the reviewing body enough guidance to determine what the “planned
development patterns” are in the area of a proposed project.
24
Although the Natural Resources chapter of the Comprehensive Plan also refers to the
planned preservation of certain natural features and scenic views in the Southeast
Quadrant, none of the references that are sufficiently specific appear to refer to the
development areas contested in this appeal. For example, the Natural Resources section
of the Plan refers to the Southeast Quadrant as containing “several special features . . .
[that] are worthy of protection,” but the only features that are specifically listed are the
sources of certain watercourses or water features that are not at issue in the present
case. Comprehensive Plan, ch. VIII, at 48.
25 The Plan also describes the existing development patterns in the Southeast Quadrant,
stating that, among other things, it “remains the most rural area in the City”; consists
“predominately of large-lot, low-density residential use and open land” and “a mixture
of land uses including both neighborhood and rural residential, open fields, wooded
ridges, a couple of dairy farms, and [the VNCC] 18-hole golf course and country club”;
“is generally characterized by . . . many drainageways, ponds, streams, wetlands, a fen,
and other wet areas”; and contains “many of the City’s most scenic views.”
Comprehensive Plan, ch. VIII, at 47–48, 53.
26 The Southeast Quadrant zoning district is abbreviated in the title of this map as
“SEQ.”
22
In the area of the VNCC in which the contested development areas are located,
the Plan contemplates a mix of residential and open space development, and the
protection of certain natural features such as wetlands. The Plan shows areas suitable
for various densities of residential development, and areas not suitable for
development, some of which are specifically shown as wetlands or floodplain. With
regard to residential development, unlike the large-lot, low density residential
development described as an existing development pattern, the Comprehensive Plan
contemplates development of “a variety of housing types . . . in terms of development
densities and design,” and a variety of “development patterns and layouts,” including
“single and multi-family units,” “affordable to moderate income hous[ing],” and
developments that “preserve[] open space with an emphasis on contiguous areas,
natural areas and views[,] through the use of such planning [techniques] as clustering.”
Id. at 48–49, 54–55. The Plan sets the overall future density of the Quadrant “in the low
[to] moderate range” of “4,100 to 4,200 residential units,” id. at 54, and proposes to
“retain agriculture as a land use in the Quadrant” and to encourage “other low-
intensity ‘open space’ uses,” such as “botanical gardens, community gardens, nurseries
and hobby farms.” Id. at 50, 54.
By looking at the Comprehensive Plan and the SEQ Goal Based Plan map, the
reviewing body is able to identify the areas planned for future development, the type of
future development, and the desired future neighborhood densities for the area, as well
as the planned development patterns for open space and natural features. Therefore,
the phrase “planned development patterns in the area” is not impermissibly vague.
In addition to providing adequate guidance in determining the “planned
development patterns in the area,” § 15.18(A)(5) must also give the reviewing body
guidance in determining whether the proposed project is “visually compatible” with
those development patterns. As used in § 15.18(A)(5), the phrase “visually compatible”
is not impermissibly vague, because it provides sufficient standards to guide a
23
reviewing body in applying § 15.18(A)(5) when considered together with the “historical
usage” of the phrase, as well as with other “external sources” such as “relevant
precedents and prior legislation” that provide specificity in interpreting the provision.
Appeal of JAM Golf, No. 69-3-02 Vtec, slip op. at 3–4 (Vt. Envtl. Ct. June 12, 2009) (citing
Handy, 171 Vt. at 348–49; Heffernan, 2004 VT 98, ¶ 9); see also Pierce Subdivision
Application, 2008 VT 100, ¶ 24 (looking to “other provisions” in the ordinance to
identify “specific limits to guide and check the Commission’s discretion”).
The requirement in § 15.18(A)(5) that a proposal be “visually compatible” with
the planned development patterns in the area is similar to the requirement in § 26.151(i)
of the 2002 Regulations, which was upheld by this Court, that a proposal be
“aesthetically compatible” with current surrounding developments. See Appeal of JAM
Golf, No. 69-3-02 Vtec, slip op. at 6–10 (Vt. Envtl. Ct. June 12, 2009). In upholding
§ 26.151(i), the Court discussed that the first prong of the Quechee Lakes test, used in
analyzing Act 250 Criterion 8, “incorporates the inquiry required by the second clause
of § 26.151(i), [which asks] whether the proposed project ‘is aesthetically compatible
with surrounding developed properties.’” See Appeal of JAM Golf, No. 69-3-02 Vtec,
slip op. at 7–9 (Vt. Envtl. Ct. June 12, 2009).
The first prong of the Quechee Lakes test guides a reviewing body in
determining a project’s compatibility with the surrounding area by asking: “Will the
proposed project be in harmony with its surroundings—will it ‘fit’ the context within
which it will be located?” In re Quechee Lakes Corp., Permit Nos. 3W0411-EB &
3W0439-EB, Findings of Fact, Concl. of Law & Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985).
The test goes on to look at several “factors” that “must be weighed collectively in
deciding whether the proposed project is in harmony with—i.e., ‘fits’—its
surroundings.” Id. The “historical usage” of this test provides adequate guidance to a
reviewing body in applying § 15.18(A)(5), as § 15.18(A)(5) requires the same analysis
and weighs the same factors required by the first prong of the Quechee Lakes test. The
24
fact that, under § 15.18(A)(5), the decisionmaker must compare the visual design of the
proposed project with the planned development patterns for the surrounding area,
rather than with its existing surroundings, does not invalidate the Quechee Lakes case
test as sufficient guidance for applying § 15.18(A)(5).
Section 15.18(B)(2) of the 2003 Regulations requires that:
Building lots, streets and other structures shall be located in a manner that
maximizes the protection of open character, natural areas, and scenic
views of the Quadrant identified in the Comprehensive Plan, while
allowing carefully planned development at the overall base densities
provided in these Regulations.
In order to be upheld, this provision must provide sufficient standards for the
Court to apply, first, in determining the open character, natural areas, and scenic views
identified in the Comprehensive Plan,27 and second, in determining whether the lot
layout, that is, the location of building lots, streets, and other structures, maximizes the
protection of those listed features. As discussed above with regard to §§ 15.18(A)(6)
and (B)(4), the term “maximize” is sufficiently definite to establish the degree of
protection.
However, with regard to the protection of the “open character” of the Southeast
Quadrant as identified in the Comprehensive Plan, “natural areas” in the Southeast
27 Unlike the problem with “scenic views” articulated by the Supreme Court in Appeal
of JAM Golf, that the view of the Taft Subdivision property was not a scenic view listed
in the Plan, the Natural Resources chapter of the Plan specifically identifies scenic views
as being of “the Green Mountains to the east and the Adirondacks and Lake Champlain
to the west.” Comprehensive Plan, at 62. That chapter also refers to Map 7 of the
Comprehensive Plan, and to a specific Natural Resources Inventory Report and a Public
Improvements/Scenic Views and Natural Area Inventory Study. However, as discussed
below regarding § 15.18(A)(10), the Court will only address the constitutionality of this
reference to scenic views if the scenic views identified in the Plan are at issue with
regard to any of the contested development areas. See also discussion at pp. 13–14,
above.
25
Quadrant as identified in the Comprehensive Plan, and “scenic views” from the
Southeast Quadrant as identified in the Comprehensive Plan, the analysis for
§ 15.18(B)(2) is the same as for § 15.18(A)(10), discussed below. To avoid reaching an
unnecessary constitutional question, the Court will only reach the constitutional
vagueness analysis regarding the protection of “open character,” “natural areas” or
“scenic views” if it is argued to be applicable to the merits of any of the four contested
development areas. If so, the Court will examine the Comprehensive Plan and the
documents referenced in it to analyze whether § 15.18(B)(2) is sufficiently specific, as
applied, at that time.
Section 15.18(B)(1) of the 2003 Regulations requires that:
Open space and development areas shall be located so as to maximize the
aesthetic values of the property in keeping with the Comprehensive Plan
goal of preserving and enhancing the open character, natural areas, and
scenic views of the Quadrant, while allowing carefully planned
development.
In order to be upheld, § 15.18(B)(1) must provide standards specific enough to
guide a reviewing body in determining whether a proposal’s open space and
development areas are located “so as to maximize the aesthetic values of the property.”
While the requirement to “maximize” may describe a sufficiently specific level or
degree of protection, § 15.18(B)(1) fails to provide any definition, standards, or guidance
to determine what are the “aesthetic values” of any particular property.
The term “aesthetic values” is not defined in the 2003 Regulations or the
Comprehensive Plan, nor has the City suggested any other source from which the DRB
or this Court could tell what falls under the category of “aesthetic values” in general or
specifically in the Southeast Quadrant zoning district. The lack of guidance found in
§ 15.18(B)(1) amounts to a delegation of “standardless discretion to [the municipal
DRB],” Handy, 171 Vt. at 348-49, which “violates property owners' due process rights.”
26
In re Miserocchi, 170 Vt. 320, 325 (2000). Therefore, § 15.18(B)(1) is unconstitutionally
vague and cannot be applied to this proposed development by this Court.
Summary judgment is therefore granted to the City that § 15.18(A)(5) is
sufficiently definite to be applied by the Court to the contested development areas.
Summary judgment is granted to Applicants that § 15.18(B)(1) is too vague to be
applied by the Court to the contested development areas. Summary judgment is denied
as premature, as to whether § 15.18(B)(2) is sufficiently definite to be applied by the
Court, because that determination can only be made as applied to a particular issue
raised in this litigation.
Regulatory Provision Regarding Consistency with Comprehensive
Plan Goals and Objectives for the Southeast Quadrant
Section 15.18(A)(10) of the 2003 Regulations requires that:
The project is consistent with the goals and objectives of the
Comprehensive Plan for the affected district(s).
As the Supreme Court explained in Appeal of JAM Golf, the regulatory
technique or method of requiring a development to conform to the municipal plan is an
allowed method of regulation. See 2008 VT 110, ¶¶ 16–19 (“[C]ities may require
subdivisions to conform to their city plan” as long as there is a “specific policy set forth
in the plan,” and the policy is “stated in language that is clear and unqualified, and
creates no ambiguity.” (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16)).
However, if it is to be used in the regulatory context, the referenced plan must contain
specific, unambiguous language stating adequate standards. Id. at ¶ 17; see also, e.g.,
24 V.S.A. § 4414(3)(ii) (stating as one standard for conditional use approval that the
proposal not have an undue adverse effect on the “character of the area, as defined by
the . . . specifically stated policies and standards of the municipal plan” (emphasis
added)).
27
The Supreme Court found the South Burlington Comprehensive Plan to be
insufficiently specific on the two topics pertaining to the Taft Subdivision appeal: the
standards regarding wildlife habitat and scenic views as applied to the Taft Subdivision
development area under the 2002 Regulations. Id. ¶ 18. The Supreme Court did not
examine the Comprehensive Plan as it applied to any other topics or development
areas. Similarly, in the present appeal, this Court must avoid issuing an improperly
advisory opinion and must avoid reaching an unnecessary constitutional question by
limiting its analysis of the specificity of the Comprehensive Plan to only those sections
of it that are at issue regarding any of the four development areas contested in this
appeal. In addition, this Court is required to avoid a constitutional analysis except as
necessary in the context of a case before it. See 24 V.S.A. § 4472(b) (stating that the
Environmental Court’s jurisdiction regarding the constitutionality of municipal bylaws
and plans is limited to those issues that “arise[] in the context of” a specific case).
The only reference in the DRB Master Plan Decision to the Comprehensive Plan
on its own—that is, separately from the references to the Comprehensive Plan
incorporated in the text of §§ 15.18(A)(5), (B)(1) and (B)(2), which are already discussed
above—is the statement that the new “west-to-east layout” proposed for the
Heatherfields/Lot 108 development area and “the installation of road infrastructure
across this area” directly contradicts the Comprehensive Plan. DRB Master Plan
Decision, at 7.
Even though the Comprehensive Plan referenced in the present case is the same
one as was analyzed in Appeal of JAM Golf, 2008 VT 110, the references to the Plan in
§ 15.18(A)(10) of the 2003 Regulations differ from its use in the former § 26.151(l) in two
respects. First, § 15.18(A)(10) only requires “consistency” with elements of the
28
Comprehensive Plan, not “conformance.”28 Second, § 15.18(A)(10) focuses on
consistency of the proposal only with the specific goals and objectives stated in the Plan
for the specific zoning district, rather than requiring conformance generally with the
whole Comprehensive Plan.
As to the lot layout and associated road infrastructure layout for the
Heatherfileds/Lot 108 development area, the goals and objectives in the Comprehensive
Plan for the Southeast Quadrant zoning district are sufficiently specific regarding those
topics. Most importantly, while the Southeast Quadrant Goals Based Plan map shows
the areas of the Taft Subdivision development area and the Old Cross Road
development area as being “developable areas” of “neighborhood density 2,”29 the area
proposed for the eastern portion of the Heatherfields/Lot 108 development area is not
shown as a developable area and is shown as containing wetlands. Comprehensive
Plan, at 164–65. Beyond the map, the text of the Comprehensive Plan for the Southeast
Quadrant lays out how the areas suitable for residential development, and their
densities, were established to achieve the overall goal for the Southeast Quadrant
zoning district to “encourage well[-]planned residential development at densities and
layouts that protect and preserve large contiguous areas of open space . . . ,” as well as
to achieve the district’s housing and natural resources goals and objectives. Id. at 7. It
28
That is, rather than having to make a positive showing that all aspects of the master
plan application conform to or comply with an undefined set of applicable provisions in
the Comprehensive Plan, the use of the term “consistent with” only requires an
applicant to show that the master plan does not impede the achievement of the district
goals and objectives. Compare discussion in In re Reclassification of Ranch Brook, 146
Vt. 602 (1986), of the difference between the statutory standard that the existing
classification is contrary to the public interest and the standard erroneously applied by
the Water Resources Board that the requested reclassification is in the public interest.
Id. at 605–06.
29 These neighborhood densities are not found in the 2003 Regulations or the Plan;
however, they may be described in the consultant study or other planning studies
referenced on page 40 of the Comprehensive Plan.
29
will be for the merits of this case to determine the appropriate densities and layouts of
development for the Heatherfields/Lot 108 development area.
Summary judgment is therefore granted to the City that § 15.18(A)(10) is
sufficiently definite, as applied to the issue of the lot layout in the Heatherfields/Lot 108
development area, to be applied by the Court to the merits of this case. If any other
elements of the goals and objectives of the Comprehensive Plan for the Southeast
Quadrant are sought to be applied by the City to the merits of any of the four contested
development areas, the constitutional vagueness analysis will have to be addressed, as
applied, at that time.
Motion to Strike
In Applicants’ Reply to the City’s Opposition to their Motion for Summary
Judgment, Applicants also moved to strike the City’s Supplemental Memorandum, filed
with the Court on June 29, 2009, on the basis that it was filed ten days after the date
granted by the Court as an extension of time. Applicants ask this Court to strike the
City’s memorandum, as well as the revised statement of undisputed material facts and
the affidavit submitted in conjunction with the memorandum.
The Motion to Strike is denied as moot, as nothing in the City’s supplemental
memorandum or associated materials was determinative of any issues in the present
motion. Rather, all the issues addressed in the memorandum relate to issues preserved
for the merits: the correct methodology for density calculations under article 9 of the
2003 Regulations; whether eight units is an excessive number for the Clubhouse
development area; what, if any, development is appropriate for areas designated as
“restricted areas”; and whether any “scenic views” are implicated in any of the four
contested development areas. Both parties will have ample opportunity to present
evidence on any of these issues, as well as to present arguments on any of these issues
remaining for the merits, if necessary, during trial or in their post-hearing memoranda.
30
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 follows:
• Summary judgment is granted to the City that § 15.18(A)(4) is sufficiently
definite to be applied by the Court to the contested development areas
with respect to the protection of wetlands and stream buffers; that
§§ 15.18(A)(6) and (B)(4) regarding contiguity of open space are
sufficiently definite to be applied by the Court to the contested
development areas; that §§ 15.18(A)(5) regarding visual compatibility is
sufficiently definite to be applied by the Court; and that § 15.18(A)(10) is
sufficiently definite, as applied to the issue of the lot layout in the
Heatherfields/Lot 108 development area, to be applied by the Court to the
merits of this case.
• Summary judgment is granted to Applicants that §§ 15.18(B)(1) and (B)(3)
are too vague to be applied by the Court to the contested development
areas, and that § 15.18(A)(4) is too vague to be applied by the Court to the
contested development areas with respect to the protection of unique
natural features.
• Summary judgment is denied as to whether § 15.18(A)(4) is sufficiently
definite to be applied by the Court to the contested development areas
with respect to the protection of wildlife habitat, as material facts
regarding the Open Space Strategy have not been provided to the Court.
• Summary judgment is denied as premature, as to whether § 15.18(A)(10)
is otherwise sufficiently definite to be applied by the Court, and as to
whether § 15.18(B)(2) is sufficiently definite to be applied by the Court, as
that determination can only be made as applied to a particular issue raised
31
in this litigation.
Material facts remain in dispute as to whether, or how many of, the residential
units proposed in the master plan for the four development areas contested in this
appeal meet the applicable criteria remaining after this decision. A telephone
conference has been scheduled (see enclosed notice) to discuss the scheduling of these
remaining issues for trial, and whether the issues have been narrowed sufficiently to
benefit from mediation prior to the scheduled trial dates.
Done at Berlin, Vermont, this 2nd day of February, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
32