STATE OF VERMONT

ENVIRONMENTAL = COURT

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In re: Mountainside Properties, Inc. } Docket No. 117-6-05 Vtec

Land Use Permit Amendment = }

(Appeal of Wilbanks & Flocken) = ; }

Decision and Order on Cross-Motions for Summary Judgment

&n= bsp; Ap= pellants George Wilbanks and Ann Flocken appeal from the decision of the District Environmental Commission #1 granting Appellee-Applicant Mountainside Properties, Inc.’s application to amend Act 250 Land Use Permit #1R0468-16 by adding a new single-family house lot and reconfiguring two o= ther single-family house lots within a 31.96-acre parcel southerly of East Moun= tain Road (formerly known as Roaring Brook East Road) near the Highridge Condominiums in the Town of Killington.&n= bsp; Appellants are represented by Charles F. Storrow, Esq.; Appellee-Applicant is represented by C. Daniel Hershenson, Esq.=

&n= bsp; Bo= th parties have filed cross-motions for summary judgment on two of the three issues presented by Appellants’ Statement of Questions, summarized as follows:

&n= bsp; (a= ). Whet= her Appellee-Applicant’s request to amend its Act 250 permit should be d= enied under Environmental Board Rule 34(E) or the so-called Stowe Club Highla= nds analysis; and

&n= bsp; (b= ). Whether Appellee-Applicant’s application to amend its Act 250 permit should = be denied on the basis of the need for finality.

Factual Background

&n= bsp; The following facts are undisputed unless otherwise noted:

&n= bsp; 1.= = On June 30, 1989, Appellee-Applicant joined in an application for an Act 250 permit to develop a 31.96-acre parcel of land above an elevation of 2,100 = feet and southerly of East Mountain Road (formerly known as Roaring Brook East Road= ) and the Highridge Condominiums in the Town of Killington, then known as the To= wn of Sherburne. Appellee-Applicant proposed to create thirteen subdivided lots, as well as associated utiliti= es, roads, and recreational facilities, as part of a larger, previously-approv= ed 400-acre planned unit development. This portion of the development is known as the Mountainside subdiv= ision. The first Act 250 land use permit application solely relating to the Mountainside subdivision was assigned t= he docket number of 1R0468-15.

&n= bsp; 2.= = On August 1, 1990, District Environmental Commission #1 (District Commission)= issued Act 250 permit #1R0468-15A (the 1990 permit) for the first phase of the Mountainside subdivision, including two single-family house lots, numbered= Lots 1 and 14, utilities, a project road as far as Lot 1, and a primitive well access road as far as future Lot 12A.&nbs= p; The remainder of the lots were to be developed in the proposed seco= nd phase of the project, after Appellee-Applicant relocated the neighboring Highridge Condominiums’ well, since the well protection zone would be encroached upon by the proposed Mountainside Lots 2 through 13.=

&n= bsp; 3.= = On September 4, 1990, Appellee-Applicant recorded a “Declaration of Protective Covenants&#= 8221; in the Killington land records. Attach. to Appellants’ Mot. for Summ. J., Ex. J. The Declaration describes Mountai= nside’s “Common Properties” as “land [that] may be held by the Developer in its present state, or may be developed and improved and the Owners, and each of them, expressly acknowledge the benefit of such Common Properties . . . .” The “Common Properties”= ; are also those areas depicted on “the plat entitled Subdivision of Lands= of Mountainside Development, Sherburne (Rutland County), Vermont dated 6/28/89, revised through 5= /17/90.”

&n= bsp; 4.= = Shortly thereafter, on September 10, 1990, Appellee-Applicant recorded a pl= at entitled “Subdivision of Lands of Mountainside Development, Incorporated,” dated June 28, 1989, revised 5/17/90, and 9/5/90.= This recorded plat showed the layout of fourteen single-family house lots, two areas of 3.09 and 9.31 acres called “Reserved No. 1”= and “Reserved No. 2,” respectively, and 6.16 acres of “Commo= n Land,” which appears to include all land under and bordering the proposed access = roads and an unlabeled rectangular parcel of approximately 14,000 square feet, as measured by scale, extending to the east of a proposed cul-de-sac, in the northeasterly corner of the subdivision.&= nbsp; Attach. to Appellants’ Mot. for Summ. J., Ex. K. The plat layout also depicted all= roads, an existing ski trail, utility easements and curve data; an “Area Su= mmary” of each parcel, including the “Reserved<= span style=3D'font-size:12.0pt;line-height:150%;font-family:"Palatino Linotype= "; mso-bidi-font-family:"Times New Roman"'> Land” and “Common Land;= 221; and a small, roughly square 250 square-foot area with a 50-foot-long acces= s, leased to Continental Telephone of Vermont, Inc. in the northeasterly corn= er of the development. See id.

&n= bsp; 5.= = After the relocation of Highridge Condominiums’ well, the District Commiss= ion held additional hearings on the remainder of the Mountainside subdivision. Appellee-Applicant submitted plan= s for fourteen single-family house lots, including the above referenced plat map= with a 3,500-foot road, tennis courts, and related utilities. The District Commission approved = this application on May 14, 1992, as Act 250 permit #1R0468-15 (the 1992 permit) with Findings of Fact, Conclusions of Law, and an Order to Is= sue Permit (Findings).

&n= bsp; 6.= = Two of the conditions of the 1992 permit required that:

This project shall be completed in accordance with the Findings of Fact, Conclusions of Law, and Order #1R0468-15, and in accorda= nce with plans and exhibits stamped “Approved” and on file with the District Environmental Commission. In the event of any conflict, the terms and conditions of this perm= it and the facts relied upon in the Findings of Fact and Conclusions of Law s= hall supersede the approved plans and exhibits.

Attach. to Appellee-Applicant̵= 7;s Mot. for Summ. J., Ex. 2, at 2 (Condition No. 6, Act 250 Land Use Permit #1R0468-15).

All road and utility construction and site work associa= ted with this project shall be completed in accordance with the approved plans= by October 15, 1993, unless an extension of this date is approved in writi= ng by the Commission. Such approva= l may be granted without notice or public hearing.

Attach. to Appellee-Applicant̵= 7;s Mot. for Summ. J., Ex. 2, at 3 (Condition No. 18, Act 250 Land Use Permit #1R0468-15).

&n= bsp; 7.= = Appellee-Applicant submitted numerous exhibits in support of its application for the 1992 per= mit, including site plans depicting all fourteen building lots, ranging in size= from one-half acre (Lot 11) to 1.3 acres (Lot 1), including 21.56 acres outside= the housing lots. Attach. to Appellants’ Mot. for Summ. J., Ex. E. Another site plan submitted in connection with the 1992 permit application proposed to locate four tennis courts, a paddle tennis court, and related shelters on an area northeaster= ly of housing L= ot 1 near the proposed cul-de-sac. Attach. to Appellants’ Mot.= for Summ. J., Ex. F. In addition= to the site plan showing the tennis courts and other recreational facilities, Appellee-Applicant submitted a “Site & Grading Plan” that = also showed the recreational facilities to the east and northeast of the propos= ed cul-de-sac. Attach. to Appellants’ Mot. for Summ. J., Ex. M.

8.= These recreation facilities were proposed for land designated on the recorded pl= at layout as both “Common Land” and “Reserved No. 2.”= The recreation facilities were pr= oposed to be located on the 14,000 square-foot rectangular “Common LandR= 21; extension from the proposed cul-de-sac and on “Reserved No. 2”= to the south and east of the 14,000 square-foot area of common land.

&n= bsp; 9.= = On December 23, 1993, Appellee-Applicant submitted another application to the District Commissio= n to amend the Mountainside subdivision by eliminating two lots, Lots 5 and 6, = and by adding land to Lots 2, 3, and 4. A small portion of Lot 7 was also proposed to be added t= o Lot 3.

&n= bsp; 10= . On <= /span>J= anuary 13, 1994, = the District Commission approved Appellee-Applicant’s amendment applicat= ion as Act 250 permit #1R0468-16 (the 1994 permit). Appellee-Applicant submitted a si= te plan depicting the new twelve-lot subdivision with its permit amendment applica= tion, which did not alter the classification of the land to the east and south o= f Lot 1. The unlabeled rectangular area of approximately 14,000 square feet remained designated as “Common Land= ,” and the surrounding land remained designated “Reserved No. 2.”= See Attach. to Appellee-Applicant’s Mot. for Summ. J., Ex. 5. No drawings or plans for recreati= onal facilities were submitted with this permit amendment application.

&n= bsp; 11= . Amon= g the standard conditions of the 1994 permit were that the project be completed = in accordance with the plans submitted with the application for an amended pe= rmit; that all terms and conditions of the original permit remained in effect, e= xcept as modified; and that “all road and utility construction and site work” be completed by October 15, 1995, unless an extension is grant= ed by the District Commission. See Attach. to Appellee-Applicant’s Mot. for Summ. J., Ex. 4, at 2.=

&n= bsp; 12= . In J= anuary 2004, Appellants purchased Lot 1 in the Mountainside subdivision= . This Lot is less than 100 feet from the 14= ,000 square-foot area designated as “Common Land” near the proposed cul-de-sac,= and surrounded by land designated “Reserved No. 2,” according to the site pla= ns recorded with the Town. Appe= llants maintain that in purchasing their property they relied on their transactio= nal attorney’s representation that the land to the east of Lot 1 was reserved as common land for= the construction of tennis courts and other recreation facilities. They maintain that they purchased = Lot 1 because of the views afforded t= o the east and northeast. They ass= ert that they would not have purchased Lot 1 if additional houses were to be constructed on the vacant land to the ea= st and south of their property.

&n= bsp; 13= . On <= /span>J= anuary 26, 2005, = the Town of Killington Planning Commission granted a planned unit development amendment to Appellee-Applicant for the creation of three new single-family lots in the Mountainside development.<= o:p>

&n= bsp; 14= . On <= /span>F= ebruary 11, 2005, Appellee-Applicant submitted the present Act 250 permit amendment applicat= ion #1R0468-17 to reconfigure two lots and to add a new lot to the previously-approved Mountainside development. This application would reconfigur= e the area designated as “Reserved No. 2” by creating Lots 15, 16, a= nd 17, easterly and southerly of Lot 1. If approved, this application wou= ld result in the construction of three single family homes to the east and so= uth of Appellants’ Lot 1 and would relocate the proposed tennis courts and recreation facilities to an area to the northwest of Lot 1, within a portion of the area designated “Reserved No. 2.”

&n= bsp; 15= . After public hearings on Appellee-Applicant’s proposal, the District Commi= ssion reviewed the permit amendment application under Act 250 Criteria 1B, 2, 3,= and 8, pursuant to 10 V.S.A. § 6086(a)(1)(B), (2), (3), (8), and issued i= ts Findings, granting the requested permit amendment (#1R0468-17) on June 15, 2005.

&n= bsp; 16= . Appe= llants timely filed their Notice of Appeal with this Court of the Permit and Find= ings issued by the District Commission.

Discussion

&n= bsp; Ap= pellants contend that Appellee-Applicant’s permit amendment proposal to reconfigure two lots and to add an additional lot to the Mountainside subd= ivision should be denied because the land to the east and south of Lot 1 was previously described as = 220;Common Land” to be developed with, at the most, tennis courts and other recreational facilities. Both parties dedicate significant portions of their cross-motions for summary judgment to arguments concerning the proper application of Environmental B= oard Rule (EBR) 34(E), which codified standards to evaluate applications to ame= nd conditions of previously-approved Act 250 land use permits in light of the Vermont Su= preme Court decision in In re Stowe Club Highlands, 166 Vt. 33 (1996). See also In re Nehemiah Assocs= ., Inc., 166 Vt. 593 (1996) (Nehemiah I); In re Nehemiah Assocs., Inc., 168 Vt. 288 (1998) (Nehemiah II).

Until now, the Environmental Court= has not had the opportunity to consider issues related to Act 250 permit amend= ments in light of the Court’s new jurisdiction over appeals from district = commissions, pursuant to 10 V.S.A. § 8504 (2004).= In these de novo proceedings, the legislature has dir= ected us to apply the “substantive standards” that were applicable t= o the tribunal appealed from and to give equal weight to prior decisions of the former Environmental Board (Board) as we would our own prior decisions. 10 V.S.A. § 8504(h), (m).

At the outset, we note that this C= ourt has its own procedural rules, the Vermont Rules for Environmental Court Pr= oceedings, that have been specifically promulgated by the Vermont Supreme Court. Therefore we are bound to employ = the substantive standards applicable when the District Commission heard this application, while also continuing to adhere to our own procedural rules.<= o:p>

Pursuant to the Vermont Supreme Court’s directive, the Board used its statutory authority to draft a= nd promulgate Rule 34(E),Appellants argue that EBR 34(E) ap= plies to Appellee-Applicant’s proposed amendment of the Mountainside subdivision because Appellee-Applicant requested an amendment of conditions requiring compliance with plans submitted in the course of the permit application process and requiring that construction be completed by a cert= ain date. Rule 34(E) governs the amendment of “critical” Act 250 permit conditions. We conclude that EBR 34(E), by its language, is not applicable here. <= /span>

Appellee-Applicant does not seek an amendment to any condition of its previous permits. Rather, Appellee-Applicant seeks = to amend the development’s layout and site plans, which are not specifi= c permit conditions, despite being referenced in the Act 250 permits. The language of EBR 34(E) is clea= r, “This rule governs applications to amend permit conditions which were included to resolve issues critical to the district commission’s or = the board’s issuance of prior permits pursuant to the criteria of 10 V.S.A. § 6086(a).” EBR 34(E)(1)= .

Appellants’ reference to the terms of the previous permits that require further review by the District Commission, should the Permittee wish to deviate from the approved plans, = and Appellants’ characterization of these terms as critical permit condi= tions invoking Rule 34(E) review is unpersuasive and not supported by prior Boar= d precedent. We have found no prior Board deci= sion that characterizes such terms (Appellee-Applicant refers to such terms as “boilerplate”) as critical, at least within the context of a R= ule 34(E) review. Such terms rei= nforce an important constant in state land use permitting—Act 250 permits a= llow a property owner to conduct the improvements specifically authorized by the permit, but no more than that. When property owners wish to complete further improvements to a property already subject to an Act 250 permit, they may be allowed to do so only after submitting the proposed improvements in a permit amendment application. If we were to determine that these necessary terms, included in all Act 250 permits, were “critical per= mit conditions” for purposes of Rule 34(E), there would be no distinction left to the initial analysis under that Rule of whether a permit condition= were “critical.” We c= annot disregard an analysis made necessary by the specific language of this Rule= . 10 V.S.A. § 8504(h) directs t= hat we apply this substantive standard.

We now turn to the Appellants̵= 7; next argument as to why Appellee-Applicant’s proposed permit amendme= nt application should be denied. Appellants assert that Appellee-A= pplicant should be bound by the conditions of its 1994 permit, requiring “all= road and utility construction and site work” to be completed by October 1= 5, 1995, and that the construction be completed in accordance with the Distri= ct Commission Findings, as well as all the exhibits approved by the District = Commission. They further argue that the Commi= ssion relied on these conditions to ensure that the Mountainside subdivision wou= ld continue to meet the applicable Act 250 criteria.

In deciding whether to allow an amendment to an Act 250 land use permit, R= 20;the central question . . . is not whether to give effect to the original permit conditions, but under what circumstances those permit conditions may be modified.” StoweClubHighlandsVt. When considering an application f= or a permit amendment, “the competing values of flexibility and finality = in the permit process” are highly relevant. Id. Certain changes in circu= mstance justify allowing an application to amend a permit or its conditions, inclu= ding “(a) changes in factual or regulatory circumstances beyond the contr= ol of the permittee; (b) changes in the construction or operation of the permittee’s project, not reasonably foreseeable at the time the perm= it was issued; or (c) changes in technology.” Nehemiah II, 168 Vt.

While the original permit process should not merely be “a prologue to cont= inued applications for permit amendments,” Stowe Club Highlands, 16= 6 Vt. Conditions in the 1990, 1992 and 1= 994 permits explicitly provided for modification, as long as those changes rec= eive “written approval of the District Coordinator or the Commission.” Attach. to Appellee-Applicant’s Mot. for Summ. J., Ex. 2, at 2 (Condition 7). <= span style=3D'mso-spacerun:yes'>

Appellants also argue that the 1992 permit requires the tennis courts and other recreational facilities to be placed on the land to the east and south of = their property, Lot 1. However, a review of the prior pe= rmits and referenced exhibits shows that there is no permit condition or representation by the developer that the tennis courts and other recreatio= nal facilities will be constructed in that specific location. Appellee-Applicant submitted a pa= ir of site plans placing the tennis courts to the east of Moreover, there is nothing in any= of Appellee-Applicant’s prior Act 250 permits or their corresponding Fi= ndings that describes the land to the east and south of Lot 1 as having any significant inherent environmental or aesthetic value which would prevent development in that area.Another factor when considering the need for finality in the permit process is the reliance on permits and their conditions by abutting landowners and other parties, including successors in title. Appellants argue that in purchasin= g Lot 1, they were reasonable in relying on their transactional attorney’s representation that it did not appear that anything was planned to be buil= t on the land to the east and south of their property, with the possible except= ion of proposed tennis courts and other recreation facilities.

Reviewing the recorded site plan and Appellee-Applicant’s previously-granted permits, we conclude that the reliance Appellants represent here was unreasonable. As stated abov= e, nothing in Appellee-Applicant’s prior Act 250 permits required the t= ennis courts and recreation facilities to be placed specifically to the east and south of Appellants’ lot. The recorded site plans were also devoid of any language or representation tha= t the tennis courts would be constructed in a specific area to the east and sout= h of While there is a small 14= ,000 square-foot area of “Common Land” shown to the east of Lot 1, = no document or site plan required that the tennis courts be placed in that sp= ecific area. Furthermore, the major= ity of the land surrounding Lot<= span style=3D'font-size:12.0pt;line-height:150%;font-family:"Palatino Linotype"= '> 1 is designated as “Reserved No. 2,” a term that is not specifically referenced, relied upon, or defined in the permits or Findings. A common-sense interpretation of = this site plan cannot lead to a conclusion that this portion of Appellee-Applicant’s land is restricted from future development, or = that a specific portion of this land will eventually be dedicated for these recreational facilities. To = the contrary, when some land within a subdivision is “reserved” by= the developer, the reasonable conclusion is that the developer envisions some future development for that land. Thus, Appellants’ reliance on this specific representation In fact, no permit condition prev= ents future development on that land.

The above considerations do not weigh heavily in favor of the finality of Appellee-Applicant’s permit. However, we still must balance the need for finality against the ne= ed for flexibility in the permit process.&nb= sp; StoweClubHighlandsVt. As mentioned above, nothing in the permits or plans for the Mountainside subdivision demonstrate a specific n= eed for the previously-granted permits to be interpreted as prohibiting the requested amendments. Appellee-Applicant’s site plan illustrates that Appellee rese= rved an area of land for future development, depicted as “Reserved No. 2.” Nothing restricted development in the area designated “Reserved No. 2,” and no fi= nal, recorded plans placed any specific amenities or recreation facilities in t= hat area. In fact, because that = area is designated as “Reserved,” we conclude that it is unreasonable = for a potential purchaser or landowner in the Mountainside subdivision to conclu= de that Appellee-Applicant would not be allowed to propose further developmen= t for that area.

If we are to import a condition, retroactively, that would restrict future development, we could do so only if there were other indications that such importation was intended. Su= ch indications could include a dedication of all “reserved” and “common” land as “Common Property,” pursuant to the subdivision’s Declaration of Protective Covenants or a conveyance of= all or some fractional interest in the “common” or “reserved” property. However, in the present case, there is no evidence of such conveyan= ces. Also, the previously-granted Act = 250 permits predicted that the Mountainside subdivision project might be amend= ed, since the District Commission incorporated into those permits a method for Appel= lee-Applicant to apply for an amendment. S= ee Attach. to Appellee-Applicant’s Mot. for Summ. J., Ex. 2, at 2 (Cond= ition 7) (“No changes shall be made in the design or use of this project without the written approval of the District Coordinator or Commission&nbs= p;. . . .”). Therefore, little evidence suppor= ts the need for finality in the permit process.&= nbsp; As a result, we find that the flexibility Appellee-Applicant seeks = by requesting consideration of its permit amendment application outweighs the finality A= ppellants desire.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Appellants’ cross-motion for summary judgment is DENIED as to both issues presented, and Appellee-ApplicantR= 17;s cross-motion for summary judgment is GRANTED as to both issues presented. A site visit and merits hearing is scheduled for December 16, 2005, to resolve the remaining issue of whether Appellee-Applicant’s proposed amendments = will have an undue adverse effect on the scenic or natural beauty of the area, = or on aesthetic considerations, warranting denial of the amendment under Criteri= on 8, as directed by 10 V.S.A. § 6086(a)(8).

= Done at BerlinVermont

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