Posted by: Patricia Salkin | February 9, 2016

VT Supreme Court Finds that, Neighbors Waived Their Claim Regarding Conditional Permit Application for Subdivision

Willowell Foundation received a conditional-use permit to build a community center and related improvements on a large plot of land in the Town of Monkton. Willowell’s 229.8–acre plot is located in Monkton’s Medium Density Rural Agricultural Zoning District (RA 2 MD) and is subject to the Unified Planning Document for the Town of Monkton. For a proposed development that is “neither specifically prohibited nor permitted nor listed” as a conditional use, the UPD provides the Monkton Development Review Board (DRB) may hear the application as one for conditional use “when in the opinion of the DRB the proposed use does not detract from the traditional rural agricultural character of the town, and is compatible with other uses” in the relevant zoning district. Because some of Willowell’s proposed activities and structures were permitted uses in the RA 2 MD, but others were either conditional uses or not listed, Willowell applied to the DRB for a conditional-use permit, which entailed a site plan review. The DRB approved Willowell’s application, subject to certain conditions. The Environmental Division upheld the DRB’s conditional-use and site-plan approval, but voided all but one condition prescribed by the DRB and required new modifications to the project.

The neighbors first claimed that Willowell’s application was fatally incomplete because it did not submit certain state permits with its conditional-use application; however, the court found that the neighbors waived this argument by not raising it at the Environmental Division. The court then analyzed whether two phrases on the subdivision plat—“Agricultural Reserve” and “Building Envelope”—imposed land-use restrictions on Willowell’s project. Willowell argued that these were vague phrases and, because land-use restrictions should be construed narrowly in favor of the landowner, any ambiguity should be decided in Willowell’s favor. The court agreed, relying on the Environmental Division’s finding that no existing document defined the two-word phrases or established that the phrases were meant to be enforceable conditions.

Next, neighbors claimed testimony offered at the subdivision-approval meeting pointed towards the subdivision developers’ intent, and therefore the testimony should have been admitted to clarify ambiguities in the plat phrases, specifically the term “agricultural reserve.” The court found that even if the developer’s testimony at the subdivision-approval meeting indicated the intent that the terms on the plat mean as neighbors have argued and that the DRB intended to impose additional conditions on the subdivision permit, no evidence existed demonstrating the conditions were incorporated into the final resolution. Lastly, the court found that the Environmental Division did not err in directing the zoning administrator to issue a zoning permit on receipt of a revised site plan, because when a zoning administrator grants a zoning permit, it is a ministerial act.

In re Willowell Foundation Conditional Use Certificate of Occupancy, 2016 WL 362733 (VT 1/29/16)

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