VT Supreme Court Finds Applicant Satisfied Statutory Notice Requirements to Obtain Approval of PUD Permit

In August 2014, Atwood Enterprises, Ltd., applied to the Town of Jericho for approval of a PUD. Atwood’s proposal involved using a roughly twenty-eight-acre parcel taken from a larger piece of farmland and constructing a six-unit, three-duplex subdivision with common lands. The Jericho Land Use and Development Regulations, effective February 7, 2013, governed approval of the project. A group of landowners adjacent to a proposed planned unit development (PUD) challenged the Environmental Division’s affirmance of the PUD permit. On appeal, neighbors argued that the Environmental Division improperly required them to amend their original statement of questions and then erred by refusing to consider all of the issues raised by neighbors’ Amended Statement of Questions. Neighbors also claimed that the court erred as a matter of law when it concluded that adequate notice was posted of the public hearing on the PUD permit.

The court first noted that under Vermont Rule for Environmental Court Proceedings 5(f), an appellant must file a statement of questions that the appellant desires to have determined on appeal. Here, Atwood properly asked the court to clarify the issues to be heard in an initial status conference. After requiring neighbors to submit an amended statement of questions, the court proceeded to trial with a statement of questions that included Question 1.b: “Whether the proposed subdivision meets the requirements of the Regulations applicable to planned unit developments.”

Despite these specific references to compliance with the other regulations, the Environmental Division determined that considering all of these issues would be too broad and ambiguous to provide notice to Atwood. As result, the court limited its decision on the merits to those issues specifically relating to PUD regulations. Throughout the trial, Atwood objected to neighbors’ cross-examination based on relevancy and the court, despite acknowledging the Amended Statement of Questions was broad, effectively denied these objections by allowing the evidence to be admitted and proceeding with the trial. The court found that because the parties presented evidence on the regulations and the regulations were before the court, the Environmental Division should have addressed them in its decision. Therefore, the court remanded the case for the Environmental Division to resolve the issues raised by neighbors’ Amended Statement of Questions not previously resolved by the court, including: subdivision-review standards, conditional-use review, any and all applicable specific-use standards, and the general provisions.

Finally, the record reflected that no dispute existed that proper publication occurred in a newspaper of general circulation and that all abutting landowners received a copy of the notice. The neighbors instead focused on the requirement that the posting must be on the public right-of-way closest to the project. The court found that, here, the parties abutting the project received actual notice via the mail and the hearing was properly published in a newspaper of general circulation. Additionally, there was no evidence that neighbors were prejudiced by the alleged defect in the posting, and the neighbors failed to identify an injury stemming from the posting defect. Accordingly, the court held that the Environmental Division’s determination that Atwood made reasonable efforts was supported by the record.

In re Atwood Planned Unit Development, 2017 WL 1035175 (2017)