Dover Watch Timeshare Project

• Court: Vermont Superior Court
• Decided: April 29, 2007
• Docket: 103-05-06 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Dover Watch Timeshare Project } Docket No. 103-5-06 Vtec (Appeal of Dover Watch Owners Association) } }

Decision and Order on Cross-Motions for Summary Judgment

Appellant Dover Watch Owners Association, Inc., (Appellant Association) appealed

from a decision of the Development Review Board (DRB) of the Town of Dover dated April

20, 2006, upholding the Zoning Administrator’s decision that a municipal zoning permit

is required for the work Appellant Association wishes to complete on the time share

(interval ownership) project known as Dover Watch. Appellant Association, involving

more than 300 purchasers of time shares in the project, is represented by Eric J. Anderson,

Esq.; the Town is represented by Joseph S. McLean, Esq.

Both parties have moved for summary judgment. The following facts are

undisputed1 unless otherwise noted.

Appellant Association seeks to complete construction on one partially-completed

building and to construct additional2 four-unit buildings in a time share (interval

1 It has been unduly difficult for the Court to determine the present scope of the project itself, as well as to determine the scope of the project that had been approved as of the adoption of zoning in Dover in 1988, because the parties have provided only the most recent of the many Act 250 permits or permit amendments applicable to this project, and have provided none of the permit applications. The one Act 250 permit decision supplied by the parties, the District 2 Environmental Commission’s Memorandum of Decision in #2W0543-R1N(Altered), issued on January 5, 2006, attached to the parties’ Stipulated Facts as Exhibit D, assumes knowledge of the prior history of the permit and the underlying facts not provided to this Court. 2 The Court cannot determine from the materials supplied whether Appellant Association wishes to construct a total of 52 units in 13 four-unit residential buildings,

1 ownership) project now known as Dover Watch, on property located northerly of Country

Club Road in West Dover. The project was started by Appellant Association’s predecessor-

in-interest, Eugene Ettlinger, and/or by corporations in which he had an interest. It appears

that Appellant Dover Watch Owners Association is in continued litigation3 with one of

those corporations,“Dover Watch at Mt. Snow, Ltd.,” over ownership of all or part of the

project property.

The parties have not provided any of the Act 2504 decisions or permits applicable

to the property other than the most recent one issued in January 2006, ruling on a motion

to alter regarding the scope of the –R1N decision which had been issued in November of

2005. Accordingly, any of the permit history of this project as described in this decision

derives from that decision or from the one Environmental Board decision on the project5

available from the Natural Resources Board website.

Mr. Eugene Ettlinger first applied to the District Commission in early 1982 for an Act

250 permit to construct 96 two-bedroom residential units on 16.2 acres of land. After test

wells had been dug on an adjacent 53.8-acre parcel, which were planned to provide a water

including the existing buildings, or to construct a total of 88 units in 22 four-unit residential buildings, including the existing buildings, nor which non-residential buildings (such as a pool building and an administration building) are included in Appellant Association’s concept of the project. 3 The Court recognizes the parties’ frustration stemming from the delays in the Dover Watch time share project that may be related to this litigation; however, all that is before this Court in this appeal is the municipal zoning status of the project. 4 The Act 250 permit status of the project is relevant to the provisions of the Zoning Bylaw related to whether and when a project may be grandfathered. 5 In re: Eugene Ettlinger (Tara Interval), Land Use Permit #2W0543-EB, Findings of Fact, Concl. of Law and Order (Vt. Envtl. Bd., Dec. 8, 1982), available at http://www.nrb.state.vt.us/lup/decisions.htm

2 supply for the proposed project, a Vermont corporation controlled by Mr. Ettlinger

(Environmental Consultants, Inc.) purchased the adjacent 53.8-acre parcel. However,

neither the public notice of the Act 250 permit proceedings nor the permit application was

amended to include the additional involved land. In September of 1982, the District

Commission issued Act 250 Permit #2W0543 to Mr. Ettlinger to construct the 52 two-

bedroom units in 13 buildings, and gave “conceptual” approval for the entire project,

described as 88 two-bedroom units in 22 buildings. However, due to the lack of notice of

the additional 53.8-acre parcel of “involved land,” a neighboring landowner appealed to

the Environmental Board, which vacated the permit and remanded the application due to

that lack of notice.

Thus, the first valid Act 250 Permit for the project was #2W0543–R1, issued by the

District Commission in early 1983 (the 1983 Act 250 Permit) for the construction of 13 four-

unit buildings containing 52 two-bedroom units, as well as the conversion of what seems

to have been an existing 40' by 40' building on the property for use as an “administration

building.” The parties have not supplied sufficient information to determine whether this

original Act 250 Permit contemplated the buildings on a 16.2-acre parcel, with some

provision for water supply on the adjacent parcel of involved land, or whether the project

property ever merged to consist of a 70-acre parcel of land. Nor can the Court determine

from the documents that have been supplied whether the 1983 Act 250 Permit discussed

“conceptual” approval for any additional buildings beyond the initial thirteen.

By some time in the 1980s, three of the thirteen four-unit buildings authorized by

Act 250 Permit #2W0543–R1 were completed. The parties have not provided any of the

applications to or decisions of the District Commission prior to the –R1N decision issued

in January of 2006; that decision outlines the permitting history of the project as it pertained

to the issues in the then-motion to alter, and does not mention the –R1B, –R1C, –R1D,

–R1G, or –R1I amendments. However, it appears from the description of the Act 250

3 permitting history in that decision that on November 10, 1988, the –R1E Act 250 Permit

extended the construction completion date to October 1, 1990 for the entire project, the last

extension decision that addressed the entire project as originally permitted. On May 31,

1988,6 the – R1F Act 250 Permit first approved the construction of the pool building; it was

to be completed by October 15, 1989.

When the project obtained the 1983 Act 250 Permit, the Town of Dover had not yet

adopted a zoning bylaw. It may have adopted an interim bylaw in April7 of 1988; in any

event it adopted a zoning bylaw effective on November 8, 1988 (the 1998 Zoning Bylaw8).

The project property appears to be located9 in the Valley Walls (District C) zoning district.

In this district, under the 1988 Zoning Bylaw, a multiple-unit residential project was a

permitted use if applied for as a Planned Residential Development (PRD) subject to the

requirements of Article 6 of the Zoning Bylaw. §330. However, for any Planned

Residential Development, §620(B) limited its overall density to the number of residential

units that would be permitted if the land were subdivided into lots in accordance with the

zoning requirements for the particular zoning district. If the project had been a PRD on 16

6 If the -R1E Act 250 Permit date of November 10, 1988 is correct, then this date for the subsequent -R1F Act 250 Permit is probably May of 1989 rather than 1988. This discrepancy may easily be checked from the records of the District Commission, but has not been provided to the Court in connection with the present motions. 7 This is suggested by the fact that April 1988 rather than (or as well as) November 1988 dates appear in the grandfathering-related sections of the Zoning Bylaw. 8 The Zoning Bylaw was subsequently amended in 1992, 1993, 1994 and in 1996; however, neither party suggests these later amendments were pertinent to the issues in this appeal. 9 The parties have not provided any indication as to the zoning district of the property, except to argue that the project would not now qualify for a zoning permit due to the one-unit-per-five-acres density required in the district; the Valley Walls (District C) zoning district is the only one with a five-acre density, which is the same in the 1988 and the 2005 Zoning Bylaw.

4 acres, it would have been limited to three residential units (or, if on 70 acres, it would have

been limited to fourteen residential units).

Section 202 of the 1988 Zoning Bylaw provided that any “construction started prior

to April 26, 1988 may be completed as long as it is a permitted use within the District

without obtaining a Zoning Permit,” provided that the property owner complies with all

other applicable permits and files a site plan showing the location of the proposed

structures, a sketch showing their height, a statement of the proposed use, and proof that

construction was started prior to November10 1988. Because the 1988 Zoning Bylaw would

not have allowed the proposed 52-unit project as a permitted use (that is, as a PRD), the

original project would not have qualified for this exemption.

Section 150 of the 1988 Zoning Bylaw provided that if “modifications are to be made

to a valid Act 250 . . . permit which was issued before April 26, 1988, which change the

design or specification of the original project, a zoning permit shall be required if any of the

following criteria are met.” The six criteria in §150 cover circumstances in which the

changes to the project (1) reduce any distance to the nearest road, property boundary or

stream; (2) increase the height of any building or structure; (3) increase the footprint of a

structure; (4) increase the square footage of a structure; (5) create additional dwelling or

commercial units, buildings or accessory structures; or (6) create additional lots.

Construction on a fourth project building known as “Quad-IV” must have been

commenced and partially completed at some time prior to March of 1993,11 as on March 15,

1993, the –R1H Act 250 Permit extended the construction completion date for the Quad IV

building to October 1, 1995. In the application for that extension the then-applicant stated

10 See footnote 7, above. 11 If the parties know when that building was commenced in relation to the April 26, 1988 date used in §150 of the 1988 Zoning Bylaw, they have not provided that information to the Court in connection with the present motions.

5 that the Quad IV building “is standing; exterior covered; roof, windows and doors in

place” and that “90% of the firewall” between the four townhouses was in place. On

September 13, 1993, the –R1J Act 250 Permit extended the construction completion date for

Buildings 5 and 6 to October 1, 1995; however, there is no indication that construction on

either of these buildings was commenced prior to the expiration of the extended 1995 date

or that any further extension was sought for either of these buildings.

On November 5, 1996, the –R1K Act 250 Permit extended the construction

completion date for the Quad IV building to October 1, 2000. The –R1L Act 250 Permit

extended the construction completion date for the pool building to October 15, 2000. On

April 23, 2001, the –R1M Act 250 Permit extended the construction completion date for the

both the Quad IV building and the pool building to October 15, 2005.

On November 22, 2005, the –R1N(Altered) Act 250 Permit extended the construction

completion dates for the Quad IV building and the pool building to October 15, 2008. On

January 5, 2006, the District Commission denied Appellant Association’s motion further

to alter that decision, which appears to have requested a ruling that the –R1N extension

application was meant to apply to “the original 52-unit project.”

The total possible number of unit weeks for the sixteen units in the four completed

(or partially-completed) buildings is 832 (computed as sixteen units x 52 weeks/year).

Appellant Association acquired 220 of these unit weeks of the time share project in 2004

through a foreclosure action in Windham Superior Court against the corporation, Dover

Watch at Mt. Snow, Ltd.12 The partially-completed Quad-IV building is reported by

12 The action was originally filed against Mr. Ettlinger as well as the corporation, but in the Judgment, Order and Decree of Foreclosure (Revised) entered by the Windham Superior Court in Docket No. 381-8-03 WmC on January 8, 2004, Mr. Ettlinger’s name was deleted from the caption and the text. The minutes of the DRB meeting as described in the DRB decision on appeal reflect some disagreement between Appellant Association’s attorney and the corporation’s attorney as to the ownership of the undeveloped land.

6 Appellant Association to be in a state of considerable disrepair; nevertheless, “dozens” of

time share unit weeks have been sold for units in that building.

Appellant Association seeks to complete the time share project as originally

proposed, although the Court cannot determine whether the project which Appellant

Association seeks to complete consists of a total of 52 units in 13 buildings on a 16.2 parcel

of land, or a total of 96 units (twenty additional four-unit buildings), or whether it is on a

total of 70 acres of land.

Effective October 25, 2005,13 the Town again amended its Zoning Bylaw. The 2005

Bylaw amendments eliminated §§150 and 202. Section 130 of the 2005 Bylaw provides that

the Zoning Bylaw “is not intended to repeal, annul or in any way impair any State or local

regulations, [or] valid permits (including Act 250 and existing subdivisions as defined in

10 V.S.A. Section 6081) previously adopted or issued.”

In the present proceeding Appellant Association asked the District Commission to

alter the discussion section of its November 22, 2005 decision in -R1N (Altered) “to

recognize that Applicant needs to have the completion date for the entire project extended

and not simply the completion date for Quad IV and the pool building.” District 2

Environmental Commission Memorandum of Decision in #2W0543-R1N(Altered) (January

5, 2006) at p.2. In its January 5, 2006 Memorandum of Decision, the District Commission

concluded that Appellant Association had not abandoned the Act 250 permit and permit

amendments for the partially completed “Quad-IV” building or the pool building; that

completion of those two buildings does not require further review under Act 250; that the

remainder of the project requires a new Act 250 application and review under the Act 250

criteria, because the last amended construction completion date has “long since” expired

13 Effective July 1, 2004, 24 V.S.A. §4449(d) provided that amended zoning regulations are to be applied as of the date on which they are proposed. The date on which the 2005 Zoning Bylaw was proposed for public comment has not been provided to the Court.

7 and circumstances may have changed; and that, if Appellant Association wished to extend

the construction completion date for the entire project, it would need to file a new Act 250

application addressing changes in circumstances, changes in the proposed project, and the

Act 250 criteria. That decision stated that the “only portions of the project [other than the

three completed buildings] which still have a valid, unexpired construction completion

date are the pool building and Building Quad IV (Units 13 – 16).”

On February 5, 2006, Appellant Association’s architect wrote to the Zoning

Administrator to request a letter confirming that the property “as approved” in the 1983

Act 250 Permit is “grandfathered” under the Zoning Bylaw. The Zoning Administrator’s

response stated that “the Dover Watch project is not ‘grandfathered’ under the Town of

Dover’s Zoning Bylaw in a manner that would exempt it from obtaining local zoning

approvals for any new land development.” Appellant Association appealed the Zoning

Administrator’s decision to the DRB, which issued a decision on April 20, 2006 upholding

the Zoning Administrator’s decision that a zoning permit is required. This de novo appeal

followed.

Appellant Association seeks a determination that the project “as approved” by the

1983 Act 250 Permit “is still allowable” under the municipal Zoning Bylaw. At the outset,

we note that any construction or development not addressed in the 1983 Act 250 permit is

beyond the scope of this appeal.

As the Zoning Administrator’s and DRB’s decision also implicitly recognized,

construction of elements of the project approved in the 1983 Act 250 permit was

grandfathered for whatever construction or site work was begun before the Town’s

adoption of its first Zoning Bylaw in 1988, under the vested rights doctrine, and may be

completed without the need for a new zoning permit unless by lapse of time it is

considered to have expired or been abandoned under the Zoning Bylaw applicable at the

8 time. (See §§ 250 and 255 of the 1988 Zoning Bylaw). See, generally, discussion of vested

rights doctrine in In re Jolley Associates, 2006 VT 132, and in In re Appeal of Taft Corners

Associates, Inc., 171 Vt. 135, 139–144 (2000). The elements of the project in this category

include the three completed buildings, assuming construction on them began before the

date of the first interim Zoning Bylaw (which may be April 26, 1988) and may also include

the partially completed Quad-IV building, if construction on it was begun before the

applicable date.

Construction of elements of the project approved in the existing Act 250 permit,

which did not require a modification of the then-existing Act 250 permit and which was

begun between April 26, 1988 and the date on which the 2005 Zoning Bylaw was proposed

for public comment, is also grandfathered under the terms of §150 of the prior Zoning

Bylaw. It may also be completed without the need for a new zoning permit, unless by lapse

of time it is considered to have expired or been abandoned. The partially completed Quad-

IV building may fall within this category if construction on it was begun between the stated

dates.

Construction of elements of the project which required a modification of the then-

existing Act 250 permit, if that modification was applied for between April 26, 1988 and the

date on which the 2005 Zoning Bylaw was proposed for public comment, needs a zoning

permit under §150 of the prior Zoning Bylaw, regardless of the fact that §150 was later

repealed. Construction of the pool building appears to have required a modification of the

existing Act 250 permit; if that modification was sought between the stated dates (see

footnote 6, above), then the pool building may fall within this category and will require a

zoning permit.

Finally, construction of any element of the project which was not begun prior to the

date on which the 2005 zoning bylaw was proposed, but which was permitted under a

then-valid Act 250 permit, is not grandfathered, but must be analyzed under § 130 of the

9 2005 Bylaw. It will require a zoning permit even if it has a valid Act 250 permit, and, if it

is proposed as a PRD, may also require conditional use approval and site plan approval

under the current Zoning Bylaw.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

the Town’s Motion for Summary Judgment is GRANTED in PART, in that Appellant

Association must obtain local zoning approval for the construction of any structure which

was not begun prior to the date on which the 2005 zoning bylaw was proposed and for the

construction of any structure which required a modification of the then-existing Act 250

permit, if that modification was sought after April 26, 1988. Appellant Association’s

Motion for Summary Judgment is GRANTED in PART, in that local zoning approval is not

necessary for the completion of any structure upon which construction was begun before

April 26, 1988, or for any construction or development approved in the Act 250 permit

which was begun between the stated dates that did not require a modification of the

existing Act 250 permit.

A telephone conference has been scheduled (see enclosed notice) to discuss whether

any issues remain for a hearing on the merits of this appeal, and to discuss whether any of

the information not provided to the Court is nevertheless undisputed.

Done at Berlin, Vermont, this 19th day of April, 2007.

_________________________________________________ Merideth Wright Environmental Judge