STA= TE OF VERMONT

ENVIRONMENTAL COURT

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= Appeal of Highlands Development Co., &nb= sp; } = &n= bsp; Docket No. 194-10-03 Vtec

&nb= sp; LLC and JAM Golf, LLC &nb= sp; = ; }

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Decision and Order on Appellants’ Partial

= Motion for Summary Judgment<= /o:p>

This decision concerns an appeal from the Decision of the City of South Burling= ton Development Review Board (DRB) dated September 25, 2003, in which the mast= er plan presented by Appellants Highlands Development Co., LLC, and JAM Golf,= LLC, for the Vermont National Country Club (VNCC) development was approved in p= art, denied in part, and approved with conditions. Appellants are represented by Wil= liam A. Fead, Esq.; the City, as Appellee, is represented by Amanda S. E. Lafferty, Esq. Appellants have moved f= or partial summary judgment challenging the adoption, scope, and applicabilit= y to their project of the newly adopted master plan provisions in the City̵= 7;s Land Development Regulations (LDRs): §§ 15.07 and 15.18.

Appellants’ Motion for Summary Judgment asks this Court to address the following issue= s as presented by Questions 1, 2, and 3 of Appellants’ Statement of Quest= ions:

&middo= t; = ; Whether LDRs §§ 15.07 and 15.18, relating to Master plan review and Appr= oval, were adopted lawfully on May 12, 2003;

&middo= t; = ; Whether the Master Plan Ordinance exceeds the zoning and planning authority of the= City pursuant to the Vermont Planning and Development Act (the Act), 24 V.S.A. §§ 4301–4496 (2003) (as amended §§ 4301–44= 83 (2004)); and

&middo= t; = ; Whether master plan approval was needed for the Appellants’ previously appro= ved planned unit development (PUD) known as the VNCC.

Factual Background<= /b>

            The following facts are not genuinely disputed unless otherwise noted:

1.         The property at issue, known as “Highlands at the VNCC,” is a ±418-acre PUD with twelve residential neighborhoods surrounding a g= olf course that straddles Dorset Street in the South East Quadrant (SEQ) zoning district. The PUD was origin= ally approved in 1996 and 1997.

            2.        = After a number of transactions between various entities, including a deed forecl= osure, Appellant Highlands Development Co., LLC took title to the land permitted = for residential development and Appellant JAM Golf, LLC took title to the golf course lands.

            4.        = Appellant Highlands Development Co., LLC does not develop the individual residential parcels itself. Rather, it s= ells development parcels with multiple lots to individual residential developer= s, all under the auspices of the VNCC PUD.&n= bsp; Highlands’ successors thereafter build and market their proje= cts as they see fit.

            5.        = Four neighborhoods are fully built: Four Sisters, Nowland Farm, Holbrook/Tabor,= and Fairway Drive.

            6.        = The three individual developments within the VNCC PUD currently at issue are t= he Old Schoolhouse and Water Tower neighborhoods, both of which were purchase= d by the Wedgewood Development Company, Inc., and a tract known as Residential Parcel 3, or the Clubhouse Area, which remains unsold.
            7.        = In 1996 and 1997, the Planning Commission first approved the VNCC PUD as a mi= xed use development on ±418 acres with 191 single-family residential un= its, forty multi-family units, and an eighteen-hole golf course and country clu= b, with the associated roads and utilities throughout the PUD. In the present appeal, the partie= s did not submit these previous permits and subsequent approvals. The Court only has before it the applications and prior decisions for amending the Old Schoolhouse and Water Tower neighborhoods, as well as Residential Parcel 3.

            8.        = Since the initial PUD approval, Appellants or their successors have applied to a= mend the original VNCC PUD by increasing the number of residential units.<= /o:p>

            9.        = Under the City’s old Subdivision and Zoning Regulations, after the origina= l PUD was approved as a major subdivision, developers had to first file a prelim= inary sketch plan with the DRB for classification and discussion to improve individual development tracts. See City’s Ex. A, § 201. After sketch plan approval, they had to file a preliminary plat application and map with complete details of the project, which may be app= roved with conditions. See id. § 203. Lastly, a final = plat application had to be filed and recorded that conforms to the conditions required at the conclusion of the Planning Commission’s review. See id. § 204.

10.       The City purportedly adopted the new LDRs on May 12, 2003, which replaced the = old Subdivision and Zoning Regulations in their entirety. Before the adoption of the new LD= Rs, the City mailed notice of the proposed zoning amendment to all neighboring tow= ns and the regional planning commission.&nbs= p; However, the City failed to send prior notice to the Vermont Depart= ment of Housing and Community Affairs. See Appellants’ Ex. 3, at 6–7. The first public hearing on the a= mended LDRs was noticed in the Burlington Free Press on March 8, 2003. See City’s Ex. O.=

            11.       The = new LDRs changed the review process for larger developments. Two of the new LDRs’ provis= ions, §§ 15.07 and 15.18, require certain major subdivisions and PUDs = to undergo master plan review before preliminary plat review could proceed. Master plan review allows the who= le project to be discussed at the DRB level and allows an applicant to reques= t an amendment to a portion of that project, which can be reviewed concurrently= with the master plan. The DRB can= thus determine the overall impacts of a development on public facilities and institutions, protect open space and natural areas, and discourage the piecemeal development that occurs when multiple amendments to a PUD are fi= led separately.

            12.       In 2= 002, before adoption of the amended LDRs, Appellants filed applications for Subdivision Sketch Plan Review to amend the original VNCC PUD by increasing housing units for the Old Schoolhouse and Water Tower neighborhoods, as we= ll as Residential Parcel 3. See Ci= ty’s Ex. B, C, H, I, J, K.

13.       Later, in April of 2003 and after the LDR amendments were noticed, Appellants fil= ed applications for Preliminary Subdivision Plat Review of the Old Schoolhous= e and Water Tower neighborhoods. City’s Ex. D, E, G, L, M.&nb= sp; Appellants did not file a Preliminary Plat application for Resident= ial Parcel 3 until they submitted their master plan application.

            14.       In J= une 2003, the DRB reopened hearings on Appellants’ applications for Preliminary Subdivision Plat Review because the Board determined that mast= er plan review was required prior to the DRB’s consideration of Appellants’ applications, pursuant to LDR § 15.07.

            15.       Appe= llants submitted their master plan application on June 23, 2003, in which the Appellants proposed how the individual unsold lots may be developed in the future.

            16.       On September 25, 2003, the DRB issued its Findings of Fact, Findings on the Applicable Criteria in LDR § 15.18(A) and (B), and its Decision and Conditions, which approved Appellants’ Preliminary Subdivision Plats, denied portions of the master plan application, and attached conditions to other aspects of the project. See Appellants’ Ex. 5.

Discussion

            Appellants allege that the Master Plan Ordinance is void because the City failed to provide prior notice the Vermont Department of Housing and Community Affai= rs (DHCA) when adopting the new Land Development Regulations. At the outset, we note that Appellants’ notice of appeal was filed within the two-year period to challenge zoning amendments. 24 V.S.A. § 4494(b) (new § 4483(b)).

The Vermont Planning and Devel= opment Act requires the City, fifteen days prior to proposing a bylaw amendment, = to send copies of the proposed zoning amendment to the planning commission of neighboring towns, the director of the regional planning commission, and t= he DHCA. 24 V.S.A. § 4403(= e) (new § 4441(e)). The City ad= mits that it failed to deliver a copy of the proposed bylaw revisions to DHCA “with proof of receipt, or mail[] by certified mail, return receipt requested.” 42 V.S.A. = § 4403(e); see also City’s Opp’n to Appellants’ Mot. for Partial Summ. J. at 8 (admitting that the City failed to send by certified= mail or to deliver a copy of the amendments with proof of receipt).<= /span>

Significant defects in the ado= ption of zoning amendments may cause those amendments to fail. However, 24 V.S.A. § 4494(a)= (new § 4483(a)) saves this LDR amendment, including the Master Plan Ordina= nce, because it prevents the Court from invalidating bylaw amendments “be= cause of a failure to adhere to strict and literal requirements of [the Act] concerning minor or nonessential particulars.” 24 V.S.A. § 4494(a) (new &se= ct; 4483(a)). “The [C]ourt= shall uphold the . . . bylaw, or action if there has been substantial compliance with the procedural requirements of this chapter.” Id.

Before the adoption of the new= LDRs, the City sent notice of the bylaw amendment to neighboring municipalities = and the Chittenden County Regional Planning Commission. See Appellants’ Ex. 3, at 6–7. The City was also= in contact with the DHCA regarding the new LDRs in early 2003. Aff. of Juli Beth Hinds, at 2. The City’s failure to offic= ially notice the DHCA of their LDR amendment is exactly the “minor or nonessential particular[]” that the Legislature intended to prevent = from invalidating zoning bylaws by enacting 24 V.S.A. § 4494(a). The City’s mistake in not providing prior notice to the DHCA, via certified mail, with return receipt requested, does not materially affect the adoption of the new LDRs, which = are valid and effective as amended on May 12, 2003.

Appellants also challenge the = Master Plan Ordinance because it allegedly exceeds the scope of its enabling legislation by requiring “speculation” as to specific uses of unbuilt subdivisions. Appell= ants continue this challenge by asserting that such speculation conflicts with = the Vermont Supreme Court’s determination that “there is no requirement th= at the subdivider know what uses will be placed on those lots” during t= he application process. See = In re Taft Corners Assoc., Inc., 171 Vt. 135, 141 (2000); LDR § 15.07(C)(3)(e) (requiring an overall plan for the property including the location and total area of the properties proposed for subdivision).<= /o:p>

Appellants’ accusation t= hat the City’s permitting requires “speculation” would be more on point if this case only concerned a subdivision. However, Appellants’ argume= nt must fail here because the Appellants are requesting development authority by v= irtue of their request to amend the VNCC PUD approval. The purpose of planned unit devel= opment review “is to merge zoning and subdivision requirements.” In re Stowe Club Highlands= , 164 Vt. 272, 276 (1995). The PUD permitting process often requires “speculation” regarding the proposed future use for a property. Because the VNCC is a PUD, the applicable rules differ from those relevant to conventional subdivisions.

Appellants’ concerns spe= ak to a problem faced by developers of large or even small tracts of land: how can the developer best determ= ine what configuration of development options will best suit the particular tr= act of land and best be received in the real estate marketplace. Municipalities also face difficul= ties in trying to predict what demands for services a new development, particularl= y a development as significant as VNCC, will impose on its community.

The concept of requiring that a master plan application be submitted for major developments is an attempt = to balance these competing concerns. Such an application allows municipalities to receive the developers’ overview of what may be proposed on an entire tract. While the master plan provisions = here require some detail of the overall project, see LDR § 15.07(C)(3= ), such approval may be amended, see LDR § 15.07(D). In fact, master plan approval may= afford some efficiencies to a developer by reducing the level of future review fo= r subsequent applications, see LDR § 15.07(D)(2)), and by eliminating the need for sketch plan review, see LDR § 15.07(D)(4).

When reviewing the legality of= zoning amendments, “[w]e start with the proposition that zoning enactments = are entitled to the presumption of validity.” Galanes v. Town or Brattleboro= , 136 Vt. 235, 240 (1978). Furthermore, “[c]ourts will not interfere with zoning unless it clearly and beyond dispute is unreasonable, irrational, arbitrary or discriminatory.” City of Rutland v. Keiffer, 124 Vt. 357, 367 (1964). We are directed to interpret zoning ordinances according to the general rules of statutory construction and in accordance with their plain meaning, Wesc= o, Inc. v. City of Montpelier, 169 Vt. 520, 525 (1999).=

Although the Act lacks specific authorization for master plans, 24 V.S.A. § 4407 provides in general = terms that “[a]ny municipality may adopt zoning regulations that may include, but shall not be limited to, any of the following provisions:= . . .” Id. (emphasis added). We interpret this pr= ovision as allowing for the regulation of PUDs, while not specifically forbidding = the use of master plans. 24 V.S.= A. § 4407(12).

The Act also specifically allo= ws the modification of zoning regulations to approve subdivision plats in a PUD.<= span style=3D'mso-spacerun:yes'> 24 V.S.A. § 4407(12) (2003).= While the local discretion is not unlimited, we conclude that it is broad enough to authorize the use of mas= ter plans. On this specific poin= t, we find persuasive the City’s argument that significant developments, s= uch as VNCC, must provide their host communities with an overview of the propo= sed project, so as to afford the municipality an opportunity to consider the f= uture planning it may be required to address.

Appellants’ argument tha= t the City’s LDRs are invalid because “the Master Plan Ordinance req= uires that the applicant commit itself to uses to be placed on the portions of i= ts property it does not presently intend to develop to the degree necessary to identify the impacts [of] . . . that possible future use,” overlooks= the flexibility inherent in the Master Plan Ordinance. Appellants’ Mot. for Summ. = J., at 9. Section 15.07(C)(3)(e)(xi= i) explicitly authorizes applicants to apply for waivers from the required as= pects of the master plan application. There is no need for Appellants to “speculate” as to the uses of their undeveloped and unsold parcels. Rather, Appellants could request a waiver from the provisions of the Master Plan Ordinance while presenting a comprehensive overview of the entire PUD.= Regardless, the Master Plan Ordinance is valid under the Act.<= /o:p>

Lastly, Appellants contend tha= t they have a vested right to have their proposals considered under the City̵= 7;s prior zoning ordinance that did not require master plan review. Appellants submitted their “= ;Application[s] for Subdivision Sketch Plan Review” for the Old Schoolhouse and Water Tower neighborhoods and Residential Parcel 3 before the City noticed a pub= lic hearing on their new LDRs on March 8, 2003. Appellants did not file their “Application[s] for Preliminary Subdivision Plat Review” for b= oth the Old Schoolhouse Road and Water Tower neighborhoods until after publica= tion of the notice. City’s = Ex. D, E, L, M; see also City’s Ex. F (showing the City’s log that re= cords the receipt of various applications).&nbs= p; Appellants did not file an Application for Preliminary Subdivision = Plat Review for Residential Parcel 3 until after they filed their master plan application.

Precedent holds that under 24 = V.S.A. § 4443(d), “if a party files an application with a town after t= he town has given notice of its intent to amend its zoning laws, the town sha= ll review such an application under the proposed zoning laws.” In re Champlain Oil Co., 2= 004 VT 44, ¶ 11, 176 Vt. 458, 461.&nbs= p; “In Vermont, rights to review under existing regulations vest= when a ‘proper’ application is filed.” Id. (citing Smith v. Wi= nhall Planning Comm’n, 140 Vt. 178, 181–82 (1981)) (emphasis add= ed).

Thus, the issue is whether Appellants’ “Application[s] for Subdivision Sketch Plan Review” constituted a “proper” application, which would = grant Appellants a vested right to have their applications considered under the pre-amendment and pre-Master Plan Ordinance bylaws. Because we find that Appellants&#= 8217; sketch plan filings are different from their applications to amend the PUD= , we conclude that Appellants do not have a vested right to have their applicat= ions considered under the pre-amendment bylaws. See In re Taft Corners Assoc., Inc., 171 Vt. 135, 139-143 (2000). Applicants do not ha= ve a vested right to have their PUD amendment reviewed under the old zoning ordinance. The DRB was there= fore within its authority to require that Appellants submit a master plan application in connection with their application to amend their PUD.<= /o:p>

Both the Vermont Supreme Court’s holding in Champlain Oil and a plain reading of § 201 of the City’s zoning bylaw, in effect prior to the M= ay 8, 2003 notice of public hearing, clearly indicate that a sketch plan is for preliminary dialogue and categorization.&= nbsp; City’s Ex. A, § 201.&nb= sp; A sketch plan is not part of a proper subdivision or PUD application which would lead to a vested right. The section reads, “For the purpose of classification and preliminary discussion, any subdivider of land shall, prior to submitti= ng an application for subdivision approval, submit to the Administrative Officer . . . a Sketch Plan of the proposed subdivision.” Id. (emphasis added). A “s= ketch plan application could not vest a right to consideration under the then-existing zoning laws for subsequent final site plan approval or a zon= ing permit application. Rights v= ested under a preliminary application do not extend to subsequent applications o= f a more detailed nature.” Champlain Oil, 2004 VT 44, ¶ 17. Thus, Appellants’ sketch plans do not give rise to a vested r= ight to develop the three neighborhoods at issue.

Because Appellants’ “Application[s] for Preliminary Subdivision Plat Review” were = not filed until after the notice of public hearing on the new LDRs, their applications to modify the VNCC PUD require a Master Plan in accordance wi= th the new LDRs and the requirement of 24 V.S.A. § 4443(d).

Accordingly, based on the fore= going, Appellants’ Motion for Summary Judgment is hereby DENIED as to Questions 1, 2, and 3 of Appellants’ Statement of Questions.= An in-person conference at the Chittenden District Courthouse is se= t for August 25^th at 2:30 p.m. (see enclosed notice) to discuss how t= his matter may now be scheduled, so as to progress to a resolution on the meri= ts.

            =             = Done at Berlin, Vermont, this 11th day of August, 2005

        =             &n= bsp;           &nbs= p;            =             &n= bsp; _______________________________________

        =             &n= bsp;           &nbs= p;            =             &n= bsp; Thomas S. Durkin, Environmental Judge