39-2-06 Vtec Supreme Court Dkt 2006-364 Appeal Pending

STATE OF VERMONT

ENVIRONMENTAL COURT

= ; &= nbsp; &nb= sp; = ; &= nbsp; }

Appeal of Baker a= nd Johns &= nbsp; &nb= sp; } Docket No. 200-10-04 Vtec

= ; &= nbsp; &nb= sp; = ; &= nbsp; }

Decision and Order on Cross-Motions for Summary Judgment

Appellants Patricia = Baker and Yvonne Johns appealed from a decision of the Town of = Middle= bury Planning Commission (Planning Commission), approving Appellee-Applicant Co-operative Insurance Companies’ (Co-operative) application for a two-lot subdivision.&nb= sp; Both Co-operative and Appellants have filed motions for summary jud= gment. Co-operative is represented by Wi= llem Jewett, Esq.; Appellants are represented by James W. Runcie, Esq.; the Tow= n has entered an appearance and is represented by Karl W. Neuse, Esq.=

Factual Background

= 1.&= nbsp; Co-operative owns an 80.3-acre parcel of pr= operty (the 80± acre parcel) north of in Middlebury. This parcel is the subject of Co-operative’s subdivision application.

= 2.&= nbsp; Co-operative also owns land within the Chip= man Hill Estates Planned Unit Development (the PUD). Co-operative’s PUD lands ab= ut the 80± acre parcel to the south and include Co-operative’s offices, as well= as 6 PUD lots numbered 7, 8, 9, 10, 11, and 11a. Lots 7-11a are located between and the 80± acre p= arcel.

= 3.&= nbsp; Appellants’ property (purchased from Marsden on June 30, 2004) is between and the southerly boundar= y of the 80-acre parcel, and abuts Lot= 7 to its west.

4. Co-operative submitted a subdivision applic= ation to the Planning Commission seeking to subdivide the 80± acre parcel= into two parcels: Lot A, containi= ng 38.3± acres and Lot B, containing 42± acres. Co-operative intends to sell Lot= A for residential development and retain Lot B for agricultural use.

5. Proposed access to Lots A and B is by right-of-way from Colonial Drive, northerly over one of its PUD lots, and = onto Lot B, then turning westerly across the southwesterly corner of Lot B to t= he southeasterly corner of Lot A.

6. On May 10, 2004, Co-operative submitted a subdivision application to the Planning Commission.&n= bsp; A public hearing before the Planning Commission was noticed for June 14, 2004. The notice stated that the Planni= ng Commission was to consider “[t]he application by Cooperative Insuran= ce Companies to subdivide their 80 acre parcel on Washington Street Extension= into two parcels.”

7. After discussing Co-operativeR= 17;s application on June 14, 200= 4, the Planning Commission voted to recess the hearing and reconvene on July 12, 2004.

8. At the July 12, 2004 Planning Commission hearing, several neighbors, including the Appellants here, expressed concern over the origi= nally proposed subdivision access. Many questions were raised about the proposed future development of = Lot A. Following a brief discuss= ion on the application, the Planning Commission voted to again recess the hearing= .

9. At some point between the June 14= and July 12 hearings, Co-operative held a separate meeting to which interested person were invited.

10. The continued public hearing befo= re the Planning Commission was warned for August 9, 2004. The Not= ice for this hearing stated that its purpose was for the “[r]econvened heari= ng for the Co-operative Insurance Companies subdivision on Washington Street Extension.” At the Aug= ust 9^th hearing, Co-operative presented three alternative access proposals for the= ir two lot subdivision. The alternative accesses appeared to be offered in response to neighbors’ concerns about the traffic the future development of Lot A may generate.

11. It was noted at the hearings= that Co-operative’s proposed access for their two lot subdivision would c= ross over at least one of Co-operative’s PUD lots. In the course of this discussion,= it was suggested that Co-operative’s revised access proposals would require= an amendment to the 1979 PUD approval, and would therefore require Planning Commission review.

12. The parties dispute the extent to= which the issue of PUD modification should have been separately noticed and whet= her a separate hearing should have been held by the Planning Commission.

13. The Planning Commission approved = the subdivision application[1] at the conclusion of its August= 9, 2004 hearing.

14. Appellants appealed the decision = of the Planning Commission to this Court and filed a Statement of Questions, prov= iding nine questions for appeal.

<= span style=3D'font-size:12.0pt;mso-bidi-font-size:10.0pt;line-height:150%;font-= family: "Times New Roman";mso-bidi-font-family:"Courier New"'>

Discussion

On March 29, 2005= , the Court issued a Decision and Order dismissing questions 1, 3, 4, and 5 of Appellants’ Statement of Questions (Questions), leaving questions 2,= 6, 7, 8, and 9 to be addressed by the Court through further pretrial motions = or a merits hearing. Co-operative= filed a supplemental memorandum to renew its request for summary judgment on the remaining Questions. Appella= nts filed their own Motion for Summary Judgment, requesting the Court to remand this matter to the Middlebury Planning Commission for consideration of the modification to the PUD. The= Town filed a memorandum in opposition to Appellants’ request for remand.<= o:p>

The primary issue posed by the pending motions and the remaining Questions con= cern the propriety of the Planning Commission’s amendment of the PUD, as part of the Plan= ning Commission’s approval of Co-operative’s subdivision application. Co-operative ar= gues in support of summary judgment that the existing PUD was lawfully modified pursuant to 24 V.S.A. § 4462 and the Town’s Zoning Ordinance. Appellants argue that the existin= g PUD was unlawfully modified by virtue of the fact that such a modification was= not properly warned for public hearing. The Town contends in opposition to Appellants’ request for re= mand that the existing PUD was properly modified under 24 V.S.A. § 4412(3).

Under the Town’s Zoning Ordinance, “any substantial change to a PUD shall require a public hearing and approval of the Planning Commission.” See § 550.IV of the Zoning Ordinance. The access to Co-operative’s proposed subdivision approved by the Planning Commiss= ion is by right-of-way from over PUD Lot= 8, with PUD Lot 7 to become a developable house lot.[2] The access ultimately approved by= the Planning Commission was not the access proposed in Co-operative<= span style=3D'font-size:12.0pt;line-height:150%;font-family:"Times New Roman"'>= ’s original application of May 10, 2004, and initially discussed at the Planning Commission’s first hearing of June 14, 2004. In fact, the access that ultimately received Planning Commission approval was= one of three options that Co-operative’s representatives proposed in t= he subsequent hearings. Those t= hree options appeared to be made in response to neighbors’ concerns, incl= uding the Appellants here, about access for the future development on Lot A.[3] Because of the particular emphasi= s the parties have placed on the question of whether it was proper for the Plann= ing Commission to amend the PUD in these subdivision proceedings, and whether = it would be proper for this Court to render a similar decision in this appeal= , we address that question first.

It is well settled in Vermont that “[t]he reach of the [environmental court] in zoning appeals is as broad as the powers of a zoning board of adjustment or a planning commission, but it is not broader .” In re Torres, 154 <= /span>Vt.= 233, 235 (1990). Furthermore, the Environmental Co= urt “is limited to consideration of the matters properly warned before t= he local board,” In re Ma= ple Tree Place, 156 Vt. 494, 500 (1991); see also Torres, 154 Vt.= at 235, because “notice and hearing requirements on application to a [planning commission] are mandatory and jurisdictional, and failure to adhere to these requirements renders the ac= tion taken null and void.” = Torres, 153 Vt. at 236.

In the present case, the warnin= gs for the June 14 and August 9 public hearings only referred to Co-operative’s subdivision application; a public hearing on the modification to the existing PUD was not warned at any time. Therefore, the modification to th= e PUD is null and void. See Tor= res, 153 Vt. at 236.

Co-operative argues that Tor= res is distinguishable from the present case because that case involved two separate zoning applications, while in the present case the Planning Commi= ssion had continuing jurisdiction over the PUD and is directed by the Town’= ;s Zoning Ordinance and the Planning and Development Act to conduct subdivisi= on and PUD review concurrently. See = Attach. to Co-operative’s Mot. to Dismiss, Ex. 7 (the Chipman Hills Estates = 1979 PUD approval); § 550.III.2 of the Zoning Ordinance (directing the Plann= ing Commission to conduct subdivision and PUD reviews concurrently); 24 V.S.A. § 4462 (“[i]f more than one type of review is required for a project, the reviews, to the extent feasible, shall be conducted concurren= tly).

Notwithstanding the accuracy of Co-operative’s reading of the Zoning Ordinance, the Act and the appr= oved PUD, the Town remains obligated under Torres to provide notice of the Pl= anning Commission hearings on applications under consideration for some action. Because modification of both the = PUD and subdivision would require two separate and distinct applications and revie= ws, notice is required for each, even if conducted concurrently. This point is especially applicab= le in this case because while Appellants had actual notice of the PUD modificati= on by way of their participation in the public hearings on Co-operative’s = subdivision application, the record does not show that all persons who would have been interested and entitled to notice actually were notified of the Planning Commission’s intent to review and potentially modify the PUD.

The Town contends that the modification of the PUD was proper under 24 V.S.A. § 4412(3), wh= ich addresses the statutory requirement that access be provided by a permanent right-of-way or easement when land development is proposed on lots that do= not have frontage on a public road or public waters. While § 4412(3) does state t= hat approvals “shall be pursuant to subdivision bylaws,” the Court= is not persuaded that this section abrogates the necessity for notice of the modification of the PUD.

What is clear is that the PUD c= ould not be lawfully modified in the proceedings below, or in the Court’s proceedings on this appeal, because there was no notice. As made clear by our Supreme Cour= t in Torres, the notice provided for in the proceedings below establishes the parameter= s of this Court’s jurisdiction in a subsequent appeal. The remaining question is whether= the record in this de novo appeal allows for this Court’s continued analysis of Applicant’s subdivision application. We believe that it does.

We recognize the very legitimate concerns that neighbors would have when they learn of a development being proposed near their homes that is as substantial as suggested here by the discussion at the Planning Commission’s first hearing on June 14, 2004. Such concerns= can grow even more worrisome when questions about the specific nature of the development could not be answered.

Land use review, particularly by municipal panels, can sometimes appear unnecessarily confusing and complex= to all parties, applicants included. <= /span>While the neighbors’ concerns here appear legitimate, we must limit our fo= cus to the questions that are properly presented by the pending application. When reviewing subdivision applic= ations in particular, we have been cautioned by our Supreme Court “that sub= division review is not intended to police prospective uses of the subdivided lots.” In re Taft C= orners Assocs., 171 Vt.= 135, 141 (1991).<= /p>

Here, all that was properly bef= ore the Planning Commission, and now on appeal to this Court, is a two lot subdivision of Applicant’s 80± acre parcel of land. The questions concerning the poss= ible future development of one or both of the subdivided lots are legitimate, b= ut not relevant in a proceeding that only has before it the question of wheth= er the proposed two lot subdivision meets the applicable municipal regulation= s and state statutes. We therefore turn our analysis to whether the undisputed evidence shows that = those regulatory requirements have been met.

It appears undisputed from the record here that Applicants’ proposed subdivision does not run afoul= of the Town Subdivision Regulations, particularly Definitions §§ 30= 2(15) and 302(16) and § 606 concerning minor and major subdivisions, with exception to the question of access. Let us defer the access issue for a moment.

In reaching our conclusion that= the facts material to the Town subdivision provisions (other than access) have= been met, we have remained solely focused on the proposals contained in the pen= ding two lot subdivision application: one lot will be retained and will continu= e in agricultural use, the other lot will remain undeveloped until approved for= a future development. Any futu= re development of Lot A must be the subject of a later application that would need= to be properly noticed and reviewed by the Planning Commission.

Pursuant to 24 V.S.A. § 44= 12(3), a municipal panel (and on appeal, this Court) is obligated to determine wh= ether a “permitted right of way or easement” exists to serve land th= at is proposed for development, when the land does not have “frontage on, = or access to, public roads or public waters.” Id. The last access the Planning Commission approved was over other lands owned by Co-operative.

The access last approved by the Planning Commission is across PUD Lot 8 and the new Lot B. That access was one of three alternatives Co-operative proposed to the Planning Commission during its l= ast hearings. It is unclear from= the record whether these three alternatives included the access Co-operative f= irst proposed in its initial application, or whether that access would have req= uired modification or amendment to the PUD.&nbs= p; Lastly, no party has suggested in their Statement of Material Facts= that the three proposed accesses are the only access options for this two lot subdivision that could be submitted in this de novo proceeding. Thus, material facts are uncertai= n, thereby warranting a merits hearing.

Accordingly, and based on the foregoing, Co-operative’s motion for summary judgme= nt is GRANTED as to all applicable Town subdivision regulations, but is denied a= s to the access question mandated by 24 V.S.A. § 4412(3). On the issue of permittable acces= s, we find that alternate accesses available here give rise to facts being in dispute, thereby necessitating a hearing on the merits.[6]

The Court will conduct a telephone conference with the parties pursuant to the Notice which accompanies this Decision.&n= bsp; The parties should be prepared to discuss the following issues at t= his conference:

1. Possible trial dates, including in December, 2005, and Janu= ary, 2006;

2. Additional Discovery that may be needed in light of this Decision;

3. Whether the parties wish to stipulate to stay these proceed= ings to allow for an application to be filed and addressed by the Planning Commission on the sole issue of amendment to the Chipman Hill Estates PUD = for the limited purpose of providing access for this two lot subdivision; and<= o:p>

4. Such other issues the parties believe are relevant to the remaining issues in this proceeding.

All other pending motions are DENIED. <= /span>Nothing contained in this Decision is to be regarded as authorizing an amendment t= o the Chipman Hill Estates PUD.

= Done at Berlin, Vermont, this 27^th day of September, 2005.

= &n= bsp; &nbs= p; = = &n= bsp; &nbs= p; ___________________________________

Thomas Durkin, Environmenta= l Judge