VTRE Investment LLC CU Duplex - Decision on the Merits

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 62-6-18 Vtec
VTRE Investment LLC CU Duplex DECISION ON THE MERITS
In this on-the-record proceeding, Michael Seaberg (“Mr. Seaberg”) appeals a May 22,
2018 decision of the Town of Stowe Development Review Board (“DRB”) approving with
conditions a conditional use application submitted by VTRE Investments, LLC (“VTRE”). Castine
Mountain Road, LLC (“Castine”), is the successor-in-interest to VTRE and now serves as Applicant
in these proceedings.
Appellant Mr. Seaberg represents himself in this matter. Castine is represented by
Alexander LaRosa, Esq. The Town of Stowe (“Town”) is represented by Joseph S. McLean, Esq.1
Standard of Review
A municipality that elects to make its land use determinations subject to on-the-record
review is must follow the procedural requirements established in the Municipal Administrative
Procedures Act (MAPA). See 24 V.S.A. § 4471(b); In re Brandon Plaza Conditional Use Permit, No.
128-8-10 Vtec, slip op. at 6–7 (Vt. Super. Ct. Envtl. Div. Mar. 26, 2012) (Walsh, J.). Pursuant to
MAPA, the DRB’s decision must be “in writing and shall separately state findings of fact and
conclusions of law.” 24 V.S.A. § 1209(a). In an on-the-record appeal, the Court considers only
the decision below, the record made before the municipal panel, and the briefs submitted by the
parties. In re Saman ROW Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div.
Sept. 2, 2011) (Durkin, J.). We do not take new evidence or make our own factual determinations.
Instead, we review the municipal panel’s factual findings to determine whether the decision
below “explicitly and concisely restate[s] the underlying facts that support the decision.” See 24
V.S.A. § 1209(a)—(b).
1
The Town has not submitted a brief in this appeal.
1
The Court will affirm factual findings only if they are supported by substantial evidence in
the record below. See In re Stowe Highlands Resort PUD to PRD Application, 2009 VT 76, ¶ 76,
186 Vt. 568. In examining whether the is substantial evidence in the record, the Court does not
assess the credibility of witnesses’ testimony or reweigh conflicting evidence in the record. See
Devers-Scott v. Office of Prof’l Regulation, 2007 VT 4, ¶ 6, 181 Vt. 248; In re Appeal of Leikert,
No. 2004-213, slip op. at 2, 2004 WL 5582097 (Vt. Nov. 1, 2004) (unpublished mem.). The Court
simply looks to whether the record includes relevant evidence that “a reasonable person could
accept . . . as adequate” support for the factual findings. Devers-Scott, 2007 VT 4, ¶ 6 (quoting
Braun v. Bd. Of Dental Exam’rs, 167 Vt. 110, 114 (1997)).
The Court then reviews the DRB’s legal conclusions without deference, unless such
conclusions are within the DRB’s area of expertise. In re Stowe Highlands Resort PUD, 2009 VT
76, ¶ 7, 186 Vt. 568.
Our review is additionally limited to those issues raised by the Appellant’s Statement of
Questions. See V.R.E.C.P. 5(f). With these legal standards in mind, we conduct our review of the
DRB’s Decision within the context of the legal issues preserved for our review by Mr. Seaberg in
his Statement of Questions.
Background
Castine is the successor in interest to Applicant VTRE. Castine owns a parcel previously
owned by VTRE, approximately 4.2 acres in size, located at 4527 Mountain Road in Stowe,
Vermont (“the Property”). The Property is located within the Upper Mountain Road (“UMR”)
Zoning District. On March 2, 2018, VTRE submitted an application to the DRB seeking approval
to construct a duplex on the Property (“the Project”). Residential multi-family dwelling units are
permitted as conditional uses in the UMR District. In connection with its application, VTRE
submitted site plans, an erosion control plan, and a landscape plan, each prepared by Grenier
Engineering. VTRE also submitted: floor plans and elevations prepared by G4 Design Studio; floor
plans, elevations, and renderings drafted by Justin Bourne; and an erosion and sediment
transport study prepared by Bannon Engineering. The record also contains information on
proposed outdoor lighting; photographs of signage and an existing crawlspace; and email
correspondence.
2
The DRB conducted a public hearing on April 3, 2018, which was then continued to May
15, 2018. The hearing re-opened on May 15, 2018 and closed at the end of that proceeding. The
DRB reviewed the Project for compliance with the Town of Stowe Zoning Regulations effective
July 3, 2017 (“Regulations”).
On May 22, 2018, the DRB issued its decision approving the application subject to the
following conditions:
1. This project shall be completed according to the plans hereby approved. Any change to
the plans or the proposed use of the property shall be brought to the Zoning
Administrator’s attention, prior to its enactment, for a determination if an amendment is
required.
2. Prior to the issuance of the zoning permit the Applicant shall file the following additional
information:
a. Revised architectural elevations which match the building renderings;
o The revised architectural elevation drawings shall depict the location of the
front deck, exterior lighting, as well as note the building elevation and
height, as defined by the Town of Stowe Zoning Regulations.
o The revised rear architectural elevation drawing shall accurately depict the
rear elevation in relation to the proposed ground elevations.
b. An updated Erosion Control Plan showing the revised improvements and
notations as shown on the Erosion Control Plan prepared by Grenier Engineering,
last revised 3/21/18.
c. An executed consecutive water system agreement between the Town and the
property owner.
d. Water and sewer allocation granted by the Town.
e. Submit water and sewer systems plans, details, and specifications for review and
approval by the Department of Public Works.
3. No construction noise is allowed at the property boundaries outside the work hours of
Monday through Friday 8:00AM-5:00PM.
4. All trash and recycling receptacles shall be stored inside of the garage(s) or in a screened
structure approved by the Zoning Administrator.
5. The color scheme of the duplex shall be generally as portrayed in the provided building
renderings and discussed during the hearing.
6. The landscaping shall be maintained in healthy condition. Any dying or diseased
landscaping be replaced in kind.
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7. Prior to the issuance of a Certificate of Occupancy, the Applicant shall file a revised site
plan and landscaping plan showing the location of a minimum 20’ vegetative buffer or
otherwise demonstrate to the Board how the proposal satisfies the requirements of
Section 3.7(2)(C)(2)(a).
In re VTRE Invs. LLC, Findings of Fact & Conclusions of Law, at 6 (Town of Stowe Dev. Review Bd.
May 22, 2018) [hereinafter, “DRB Decision”].
Mr. Seaberg is an occupant of abutting property at 4441 Mountain Road, Stowe, Vermont.
He submitted written comments to the DRB and participated in the public hearing on April 3,
2018. Mr. Seaberg filed a timely appeal of the DRB’s Decision to this Court on June 20, 2018. On
January 4, 2019, the Court granted VTRE’s motion to dismiss the appeal for lack of standing. See
In re VTRE Inv. LLC CU Duplex, No. 62-6-18 Vtec (Vt. Super. Ct. Envtl. Div. Jan. 4, 2019) (Durkin,
J.). Mr. Seaberg subsequently appealed to the Vermont Supreme Court. The Supreme Court
reversed, finding that Mr. Seaberg has standing to pursue his appeal, and remanded to this Court
for further proceedings. See In re VTRE Invs., LLC Conditional Use Duplex, No. 2019-050, 2019
WL 3543711 (Vt. Jul. 12, 2019) (unpublished mem.). On remand, we now consider Mr. Seaberg’s
on-the-record appeal of the DRB’s May 22, 2018 Decision.
Discussion
Mr. Seaberg raises nine Questions in his Statement of Questions. The Questions ask whether
the DRB erred in determining that: (1) no front yard landscaping was required, (2) the Applicant’s
proposed side yard landscaping was adequate, (3) storing garbage in the garage meets the
screening requirements for garbage collection areas, (4) no additional stormwater would be
directed toward neighboring properties due to the Project, (5) no additional stormwater
management was required, (6) no stormwater plan was required, (7) the mass and scale of the
Project was compatible with the existing site, (8) the mass and scale of the Project was
compatible with neighboring properties, and (9) the structure will not adversely affect the
character of the area. See Statement of Questions, filed Jul. 9, 2018. We address each issue in
turn.
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I. Question 1: Front yard landscaping
Question 1 asks whether the DRB erred in determining that no front yard landscaping was
required. Specifically, Mr. Seaberg contends that the DRB should have required a 20-foot-wide
landscaped strip running along the right-of-way for Mountain Road. Mountain Road is also
known as Vermont Route 108. Pursuant to the conditional use standards, “[a] continuous strip
not less than twenty (20’) feet deep, measured from the edge of the highway right-of-way, shall
be maintained between the street line and the balance of the lot, which strip shall be suitably
landscaped.” Regulations § 3.7(2)(C)(2)(a). The DRB has discretion to waive this requirement
“when mitigation [through] design, screening or other mitigation will accomplish the objectives
outlined for the designated districts.” Regulations § 3.7(2)(C).
The DRB acknowledged the buffer requirement and noted evidence of “existing drainage
issues from the Mountain Road and Lower Sanborne Road.” See DRB Decision at 5; see also
Transcript, May 15, 2018, at 20–25. As the DRB explained, VTRE requested temporary relief from
the buffer requirement and “testified that . . . the [buffer] area cannot support thriving
landscaping until the drainage issues are resolved.” DRB Decision at 5. The Decision provides
“temporary relief . . . until such time as the drainage issues can be properly addressed.” Id.
Through Condition 7, the DRB required VTRE to “file a revised site plan and landscaping plan
showing the location of a minimum 20’ vegetative buffer or otherwise demonstrate . . . how the
proposal satisfies the requirements of Section 3.7(2)(C)(2)(a)” prior the issuance of a Certificate
of Occupancy. See id. at 6.
Castine argues that the DRB was within its discretion to provide temporary relief based
on the evidence. However, Mr. Seaberg argues that “[s]hifting the requirement for the 20’ front
yard landscaped strip to be shown as a condition of a certificate of occupancy rather than a
permit eliminates the chance for the public to review . . . [the] landscaping plan . . . prior to the
issuance of the permit.” Appellant’s Reply Brief at 5, filed Dec. 24, 2019. The core of Mr.
Seaberg’s concern appears to be that the DRB postponed its review of the front yard landscaping
such that the review would occur after the permit was granted. We share Mr. Seaberg’s concern.
Before granting approval for a conditional use, “the DRB must determine that the use will
conform to” the specific and general standards set forth in the Regulations. See
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Regulations § 3.7(2); see also 24 V.S.A. §§ 4414(3)(A)–(B) (stating that “certain uses may be
allowed only by approval of the [DRB] . . . if the [DRB] . . . determines that the proposed use will
conform to” the relevant standards). “In rendering a decision in favor of the applicant, the panel
may attach additional reasonable conditions and safeguards as it deems necessary to implement
. . . the pertinent bylaws and the municipal plan then in effect.” 24 V.S.A. § 4464(b)(2).
Acceptable conditions can include post-development actions or requirements to ensure that
certain standards are met. See In re Hinesburg Hannaford Act 250 Permit, 2017 VT 106, ¶¶ 83–
84, 206 Vt. 118 (in the context of Act 250).
In this case however, the DRB did not make any determination on the Project’s
compliance with the buffer requirement, nor did it conclude that “other mitigation will
accomplish the objectives outlined for the . . . district[].” See Regulations §§ 3.7(2)(C), (2)(C)(2)(a).
Instead, the DRB approved the application on the condition that the applicant “demonstrate . . .
how the proposal satisfies the requirements of Section 3.7(2)(C)(2)(a)” at a later date. See DRB
Decision at 6. A permit condition that qualifies permit approval on future proof of compliance
after the permit takes effect, or allows the permitting authority to alter an approved permit
pending some future event, is regarded as an impermissible condition subsequent. See, e.g., In
re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 14, 201 Vt. 532 (discussing conditions subsequent
in the context of Act 250 approvals); In re Pelkey Subdivision Amendment, No. 119-9-16 Vtec, slip
op. at 3 (Vt. Super. Ct. Envtl. Div. June 28, 2019) (Durkin, J.) (a permit approval including a
requirement that the town automatically approve an unknown future proposal would be “an
invalid condition subsequent”). Conditions of this type allow the reviewer “to circumvent the
requirement that projects which have been permitted satisfy the . . . criteria.” See Treetop, 2016
VT 20, ¶ 14 (invalidating a condition subsequent imposed by a District Environmental
Commission).
The DRB must make affirmative findings of fact; it cannot substitute a condition for its
obligation to determine whether “the use will conform” to the applicable standards. See
Regulations § 3.7(2); see also Treetop, 2016 VT 20, ¶¶ 11, 14 & n.5 (in the Act 250 context)
(citations omitted). As a result of Condition 7, the Project’s compliance with the buffer
requirement will not be addressed until after the permit is issued. We therefore conclude that
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Condition 7 is an invalid condition subsequent, and we answer Question 1 in the affirmative to
the extent it asks whether the DRB erred. Condition 7 must be VACATED and this matter must
be REMANDED to the DRB to make findings of fact and conclusions of law addressing the
requirements in Regulations § 3.7(2)(C)(2)(a), and, if necessary, hold additional hearings to collect
sufficient evidence for it to make such findings and conclusions.
To be clear, our decision here has no bearing on the underlying merits or the timing of
landscaping installations. On remand, the DRB must review the Project and determine whether
the proposal will comply with § 3.7(2)(C)(2)(a) or whether “other mitigation will accomplish the
objectives outlined for the . . . district[].” Regulations § 3.7(2)(C). The DRB may impose
“reasonable conditions and safeguards as it deems necessary” to ensure compliance with the
Regulations, but it cannot impose conditions which defer the question of compliance altogether.
See 24 V.S.A. § 4464(b)(2).
While our determination here that remand is necessary, we continue our review of
Appellant’s remaining Questions, due to the history of these proceedings, and so as to provide
our determinations on the remaining legal issues that Appellant presents.
II. Question 2: Side yard landscaping
Question 2 asks whether the DRB erred in determining that the proposed side yard
landscaping was adequate. Mr. Seaberg argues that VTRE’s landscaping plans do not comply with
Regulations §§ 4.6(3)(A) and (C), and therefore the plans do not meet the standards for
conditional use approval. See Regulations § 3.7(2)(B)(7) (requiring plans “designed to conform
to the terms and conditions of Section 4.6”). Pursuant to Regulations § 4.6(3)(A), landscaping
“should include a combination of shade trees (deciduous and/or coniferous), deciduous and
evergreen shrubs, well kept grasses and ground covers.” In addition:
Landscaping plans shall emphasize the use of both deciduous and coniferous
shade trees in available yard area, especially front and side yards and parking
areas. Shade trees shall be placed to interrupt the façades of buildings, to visually
reduce the scale and bulk of large buildings, and to enhance environmental
quality. . . .
Regulations § 4.6(3)(C).
7
Unfortunately, we cannot conduct an appropriate review of this issue because it is unclear
how the DRB reached its conclusions. A municipality that elects to make its land use
determinations subject to on-the-record review must apply the procedural requirements
established in MAPA. See 24 V.S.A. § 4471(b). MAPA requires that final decisions of municipal
panels “separately state findings of fact and conclusions of law.” 24 V.S.A. § 1209(a).
Additionally, the findings of fact must “explicitly and concisely restate the underlying facts that
support the decision” and be “based exclusively on evidence” in the record. Id. §§ 1209(a), (b).
The conclusions of law must be based on those findings. Id. § 1209(c). The requirement that
decisions afforded on-the-record review include findings of fact is largely to provide “a clear
statement to the parties and the court in the event of an appeal on what was decided and how
the decision was reached.” In re Appeal of Leikert, No. 2004-213, slip op. at 1, 2004 WL 5582097(Vt. Nov. 1, 2004) (unpublished mem.) (discussing, in detail, the important functions served by
findings of fact). This Court has been cautioned against “fill[ing] in the gaps” left by deficient
decisions. Id. at 2. As we have recognized, “[w]hen a municipality elects to make its land use
determinations subject to on-the-record review, it is committing to meeting the procedural
requirements in [the Municipal Administrative Procedure Act] or risking the remand of its
determinations and, consequently, the loss of some of its earlier efforts.” Brandon Plaza, No.
128-8-10 Vtec at 6–7 (Mar. 26, 2012).
Here, the DRB noted that VTRE provided a landscaping plan and renderings showing views
from various locations. See DRB Decision at 4. The DRB made limited factual findings: “Three
new red maples are proposed along the driveway. Three existing trees just north of the duplex
are proposed to remain.” Id. The DRB also paraphrased Regulations § 4.6(3)(C), requiring “shade
trees to be placed to interrupt the façades of buildings and to visually reduce the scale and bulk
of large buildings,” but did not explain how the proposal satisfies the applicable standards. See
id. There is no reason given for the conclusion that “the proposed screening and landscaping is
appropriate for the intended use and site location.” See id. at 5. In rendering legal conclusions,
the DRB “does not fulfill its adjudicative responsibilities by merely reciting the legal standards . . .
[r]ather, the panel must also specifically state why the facts of the proposed project fit within
those applicable legal standards.” In re Buss Conditional Use Application, No. 130-10-12 Vtec,
8
slip op. at 2–3 (Vt. Super. Ct. Apr. 29, 2013) (Durkin, J.). If we were to proceed with our review,
we would be “in the position of perusing the record and making [our] own assessment of the
credibility of the witnesses and the weight to be given the evidence.” See Appeal of Leikert, No.
2004-213 at 2. We cannot engage in that type of analysis in an on-the-record appeal. See id.; In
re Williams Amended CU Permit, No. 40-4-13 Vtec, slip op. at 4 (Vt. Super. Ct. Jan. 10, 2014)
(Durkin, J.).
Because both the factual findings and conclusions of law lack specificity or any
explanation of the DRB's reasoning, we conclude that we must REMAND this issue to the DRB,
so that it may amend its Decision to incorporate more specific and sufficient findings and
conclusions or hold additional hearings to collect the evidence necessary for it to make such
findings and conclusions.
III. Question 3: Screening of garbage collection areas
Question 3 asks whether the DRB erred in determining that storing garbage in the garage
meets the screening requirements for garbage collection areas. Pursuant to Regulations
§ 4.6(5)(A), “[s]ufficient screening shall be provided if the DRB determines that topographical or
other barriers do not provide adequate screening. Screening may be required . . . [a]djacent to
garbage collection . . . areas.” We have previously held that “the screening provided for in §
4.6(5) is visual” in nature. VTRE Invs. CU, No. 36-3-18 Vtec, slip op. at 9 (Vt. Super. Ct. Envtl. Div.
Dec. 28, 2018) (Durkin, J.). Mr. Seaberg contends that storing garbage in the garage does not
address screening for the driveway, where he believes the garbage will be collected. He also
contends that the DRB should have required VTRE to designate a screened exterior collection
area.
The DRB’s Decision does not discuss screening requirements. The Decision does not cite
the applicable standards, nor does it contain factual findings related to screening. See DRB
Decision at 4–5. Without any findings, the DRB concludes that “the proposed screening . . . is
appropriate for the intended use and site location.” See id. at 5. The Decision also includes
Condition 4, requiring that “[a]ll trash and recycling receptacles shall be stored inside of the
garage(s) or in a screened structure approved by the Zoning Administrator.” Id. at 5–6. In the
absence of factual findings or conclusions of law that “provide a transparent recitation of the
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reasons” for this condition, we cannot determine whether the DRB erred in imposing it. See
Brandon Plaza, No. 128-8-10 Vtec at 11 (Mar. 26, 2012).
The DRB has broad discretion over screening requirements. See Regulations § 4.6(5)(A)
(requiring screening “if the DRB determines that . . . other barriers do not provide adequate
screening); Id. § 4.6(5)(A)(2) (“Screening may be required . . . [a]djacent to garbage collection
areas . . . .”) (emphasis added). Yet the Decision here does not provide enough information to
review the DRB’s conclusions even for abuse of discretion. Therefore, we must REMAND to the
DRB so that it may amend its Decision to incorporate findings and conclusions on the issue of
screening, or hold additional hearings to collect the evidence necessary for it to make such
findings and conclusions. On remand, if the DRB ultimately decides to impose certain conditions
related to screening, the DRB must include in its decision findings of fact and conclusions of law
that support such conditions. See Brandon Plaza, No. 128-8-10 Vtec at 11 (Mar. 26, 2012).
IV. Question 4: Stormwater impacts on neighboring properties
Question 4 asks whether the DRB erred in determining that the Project would not result
in additional stormwater directed toward neighboring properties. Pursuant to Regulations
§ 3.12(2)(E), “[a]ll development must provide for an adequate stormwater drainage system to
ensure that the existing drainage patterns are not altered in a manner to cause an undue adverse
impact on neighboring properties.” Mr. Seaberg notes that the Project is located “very close” to
the septic field of the neighboring property where he resides, and he argues that the record does
not support a determination that the proposed drainage swale will effectively direct water away
from the neighboring septic system and the neighboring property in general.
Castine maintains that the drainage swale is adequate as designed and certified by
engineer John Grenier. Castine asserts that the swale will direct runoff toward the rear of the
Property and away from neighboring property, and furthermore that the site and erosion control
plans provide for the removal of certain fallen trees to reduce the current ponding of water and
improve drainage toward the river.
In reaching its conclusion on stormwater issues, the DRB considered a site plan prepared
by Grenier Engineering, a report by Bannon Engineering, and testimony at the public hearings.
See, DRB Decision at 5. The DRB’s Decision states that “[a] drainage swale is proposed in the
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rear of the duplex and noted to direct drainage away from off-site properties including
neighboring septic,” and goes on to conclude that “no additional stormwater management is
required for the Project under review.” See id. The DRB also imposed Condition 2(b) requiring
“[a]n updated Erosion Control Plan”
The DRB’s Decision does not cite the stormwater standards applicable to the Project. See
id.; see also, e.g., Regulations § 3.12(2)(E), (requiring “that the existing drainage patterns are not
altered in a manner to cause an undue adverse impact on neighboring properties”). The DRB did
not make findings on the effectiveness of the proposed drainage system or the impact on
neighboring properties, and it did not explain the reason for imposing Condition 2(b). See DRB
Decision at 5–6. The Decision does not explain how “the facts of the proposed project fit within
[the] applicable legal standards.” See Buss Conditional Use Application, No. 130-10-12 Vtec at 2–
3 (Apr. 29, 2013). Without an explicit restatement of “the underlying facts that support the
decision,” we cannot determine whether the record contains sufficient evidence to support the
DRB’s conclusion. See 24 V.S.A. § 1209(a).
For these reasons, we conclude that we must also REMAND this issue so that the DRB
may amend its Decision to incorporate more specific and sufficient findings and conclusions or
hold additional hearings to collect the evidence necessary for it to make such findings and
conclusions. On remand, if the DRB decides to approve the Project subject to conditions, it must
include findings of fact and conclusions of law that support those conditions.
V. Question 5: Additional stormwater management
Question 5 asks whether the DRB erred in determining that no additional stormwater
management was required. See DRB Decision at 5 (“The Board concludes no additional
stormwater management is required for the project under review . . . .”). Mr. Seaberg’s concern
here appears to be the same as his concern above regarding stormwater runoff, and he relies on
largely the same argument. He contends that the evidence and testimony should have led the
DRB to require additional stormwater management to “ensure that existing drainage patterns
are not altered in a manner to cause an undue adverse impact on neighboring properties.” See
Regulations § 3.12(2)(E).
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As we explained in our discussion of Question 4 above, the DRB’s Decision does not
contain findings of fact related to the proposed drainage system and does not explain how the
proposal satisfies the applicable stormwater standards in the Regulations. See DRB Decision at 5.
Our review in this on-the-record appeal is limited to upholding the DRB’s findings of fact if they
are supported by substantial evidence in the record and determining whether the DRB’s legal
conclusions are supported by those findings. See In re Stowe Highlands Resort PUD to PRD
Application, 2009 VT 76, ¶ 7, 186 Vt. 568. Without sufficient factual findings or legal conclusions,
we cannot conduct our review. We must therefore also REMAND this issue so that the DRB may
amend its Decision to incorporate more specific and sufficient findings and conclusions or hold
additional hearings to collect the evidence necessary for it to make such findings and conclusions.
VI. Question 6: Whether a stormwater plan should be required
Questions 6 asks whether the DRB erred in determining that no stormwater plan was
required. The Regulations require a stormwater plan for any development creating more than
0.5 acre of additional impervious area. See Regulations § 3.12(2)(F) ((“All development that
creates more than ½ (one-half) acre of additional impervious surface must . . . submit a
stormwater management plan . . . .”). For conditional uses creating less than 0.5 acre of
additional impervious area, the DRB has discretion to require a stormwater plan. See Regulations
§ 3.7(2)(B)(8) (“The applicant shall, at the request of the DRB, submit a plan for the management
of stormwater generated by the development.”).
Castine asserts that the Project will create only 0.12 acre of additional impervious surface,
and therefore a stormwater management plan is not required under Regulations § 3.12(2)(F).
However, as we have said, the DRB’s Decision does not cite the applicable stormwater standards.
See DRB Decision at 5. The DRB did not render any findings or conclusions as to the impervious
surface generated by the Project. See id. As such, we are unable to conduct our review. See 24
V.S.A. §§1209(a)–(c); see also Brandon Plaza, No. 128-8-10 Vtec at 3 (Mar. 26, 2012) (“[W]e do
not take new evidence or complete our own determination of the facts.”). We must therefore
also REMAND this issue so that the DRB may amend its Decision to incorporate more specific and
sufficient findings and conclusions or hold additional hearings to collect the evidence necessary
for it to make such findings and conclusions.
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VII. Questions 7 and 8: Compatibility with the existing site and neighboring properties
Questions 7 and 8 ask whether the DRB erred in determining that the mass and scale of
the Project was compatible with the existing site and neighboring properties, respectively.
Standards for the UMR District require a finding that “the proposed development is designed in
a manner compatible with the area’s rural character.” Regulations § 3.7(2)(C)(2)(e). As relevant
here, building designs “shall reinforce the rural landscape . . . through contextual scale and
orientation of the buildings within the site,” and “should generally be designed with a pitched
roof and be of a mass and scale compatible with neighboring properties and the site.
Id. §§ 3.7(2)(C)(2)(e)(i)–(ii).
Mr. Seaberg notes that his comments and those of DRB members at the April 3, 2018
hearing reflect concerns about the height and bulk of the proposed duplex in relation to other
buildings on the site and neighboring properties. Castine argues that the DRB’s concerns were
adequately addressed through revised plans and elevations presented at the May 15, 2018
hearing.
The DRB’s Decision states the applicable standards and concludes that “the proposed
development is designed in a manner compatible with the area’s rural character and the
proposed duplex will be compatible in scale and orientation of the buildings within the site.” See
DRB Decision at 5. However, the DRB made only one reference to the design of the proposed
duplex: “The Applicant provided building elevation drawings.” See id. The DRB did not render
findings of fact related to the appearance, mass, scale, or orientation of the proposed duplex.
See id. The Decision does not characterize the existing site or neighboring properties. See id.
The Decision does not discuss the evidence relied upon or explain how “the facts of the proposed
project fit within [the] applicable legal standards.” See Buss Conditional Use Application, No.
130-10-12 Vtec at 2–3 (Apr. 29, 2013).
Because both the factual findings and conclusions of law lack specificity or any
explanation of the DRB's reasoning, we conclude that we must also REMAND this issue so that
the DRB may amend its Decision to incorporate more specific and sufficient findings and
conclusions or hold additional hearings to collect the evidence necessary for it to make such
findings and conclusions.
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VIII. Question 9: The Character of the Area
Question 9 asks whether the DRB erred in determining that the Project will not adversely
affect the character of the area. Mr. Seaberg’s concerns here mostly relate to the height and
bulk of the proposed duplex. Pursuant to Regulations § 3.7(2)(A), a project “shall not result in an
undue adverse effect on . . . [t]he character of the area affected as defined by the purpose of the
zoning district within with the project is located and specifically stated policies and standards of
the Stowe Town Plan.” The Property is in the UMR district, the purpose of which is “to control
development along the ‘upper’ Mountain Road in a manner that allows for residential, recreation
and low-density commercial uses of property while preserving the rural character of the
landscape, discouraging strip development and promoting the ongoing viability of existing land
uses.” Regulations § 5.12(1).
The DRB found that “the general vicinity of the project includes lodging facilities, multi-
family dwellings, and single-family dwellings.” DRB Decision at 3. After stating the purpose of
the UMR District, the DRB noted that “[t]he Applicant is proposing a residential duplex. Id. Based
only on these findings, the DRB concluded that “the proposed use will not adversely affect the
character of the area as defined in the Town of Stowe Zoning Regulations. See id. Once again,
this leaves the Court without sufficient information to review the DRB’s Decision. We do not
know what findings the DRB relied on or how it reached its conclusion.
Because both the factual findings and conclusions of law lack specificity or explanation,
we must also REMAND this issue so that the DRB may amend its Decision to incorporate more
specific and sufficient findings and conclusions or hold additional hearings to collect the evidence
necessary for it to make such findings and conclusions.
Conclusion
For the reasons detailed above, we must VACATE Condition 7 and REMAND the
application to the Town of Stowe DRB for clarification of its findings of fact and conclusions of
law. We also REMAND so that the DRB may more fully address the deficiencies identified above
in our analysis of Appellant’s Questions 2 through 9. We recognize that municipal boards are
often made up of lay people serving as volunteers, many of whom have limited training in
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adjudicative matters. We hope that this decision will assist the DRB in understanding how to
fulfill its role of ensuring that property owners and interested persons receive an adjudicative
process that is fair, comprehensible, and not unnecessarily delayed. We also note that the
deficiencies identified in the DRB’s decision can be addressed without undue difficulty. Future
decisions should note the applicable standards; render findings of fact specific to the proposal
and based on the evidence presented; and relate those findings to the applicable standards to
arrive at a conclusion.
This concludes the matter before the Court. A Judgment Order accompanies this
Decision.
Electronically signed on June 30, 2020 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
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