Posted by: Patricia Salkin | September 25, 2008

VT Supreme Court Invalidates Ordinance and Plan For Lack of Standards To Guide Development

JAM Golf sought permits to build ten houses on a seven-acre portion of a 450-acre Planned Residential Development (PRD) known as the Vermont National Country Club. The parcel, called “the woodland,” sits on a ridge within the golf course and is bounded by three fairways and another residential development. Several species of nut-producing trees are on the parcel. Wildlife experts observed or noted evidence of deer, foxes, turkeys, raccoons, birds and other small animals in the woodland. The city’s development review board rejected the application. Four years later, the Environmental Court upheld the board’s decision. The court found the project did not satisfy an ordinance provision requiring that PRDs protect “important natural resources including … scenic views and wildlife habitats.” It also declared that the project violated a provision requiring PRDs to conform to the city plan.

 

On appeal, JAM argued the zoning ordinance requires only that PRDs protect important wildlife habitat and scenic views, and allows developers to offer mitigation to meet that requirement. “Unfortunately, the ordinance as written is essentially standardless,” the Supreme Court said. While JAM challenged the lower court’s interpretation of the ordinance, rather than attacking the ordinance itself, the ordinance is flawed because it provides no standards a court could apply in determining what would constitute a failure to protect the listed resources. The court noted that “protect,” as defined in the ordinance, cannot be equivalent to total preservation, because the regulations allow for development that necessarily will reduce wildlife habitat and affect scenic views. But the court could not say how much less than total preservation qualifies as sufficient protection because the regulations do not say. From a regulatory standpoint, the ordinance provides no guidance as to what may be fairly expected from landowners who own a parcel containing wildlife habitat or scenic views and wish to develop their property as a PRD. Such standardless discretion violates landowners’ due process rights, the court declared.

 

Turning to the claimed failure to conform to the city plan, the court reiterated it will not enforce laws that are vague or delegate standardless discretion to zoning boards. Municipalities may require subdivisions to conform to the city plan, but may not reject a project when there is no specific policy set forth in the plan and stated in clear and unqualified language. The court again found no specific standards to guide enforcement. While the plan identifies some generic natural resources to be protected, such as scenic views, it does not define what in particular is to be protected and offers no standards as to how or when development should be restricted to accomplish that goal. At best, the court said, the zoning scheme was confusing. While the zoning map of the town labels “important scenic views,” the view the Environmental Court found scenic in this case was not one so designated on the map. An ordinance cannot leave such designations to the Environmental Court’s unfettered discretion. The court also noted that the city plan’s general policy of promoting growth and residential development in the area conflicts with the notion of complete preservation of natural resources. The plan offered too little guidance to the board or a landowner as to how to balance these competing concerns, and was thus too ambiguous to be enforceable.

 

In re Appeal of JAM Golf, LLC, 2008 WL 3877119 (Vt. 8/22/2008).

 

The opinion can be accessed at: http://170.222.4.25/supct/current/op2006-307.html

 

The oral argument in the case can be heard at:

http://jwebaudio.synecology.com/Mar08/06-307.wma

 

Special thanks to James Lawlor, Esq. of the Land Use Legal Report for permission to share this abstract from the August 31, 2008 issue of the Report.  For subscription information, contact Jim Lawlor at landlaw@verizon.net .


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