STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
} In re Highlands Development Co., LLC } and JAM Golf, LLC } Docket No. 194-10-03 Vtec Master Plan Application } }
Decision and Order on Motion for Reconsideration or to Alter or Amend
Appellant-Applicants Highlands Development Co., LLC and JAM Golf, LLC
(Applicants) appealed from a decision of the Development Review Board (DRB) of the
City of South Burlington, approving 297 of the 3571 residential dwelling units sought in
Applicants’ master plan application for a 450-acre Planned Unit Development.
Applicants are represented by Mark G. Hall, Esq. and William A. Fead, Esq.; the City of
South Burlington is represented by Amanda S.E. Lafferty, Esq.2
Applicants previously moved for summary judgment in this appeal, asking the
Court to invalidate several provisions of the 2003 South Burlington Land Development
Regulations (2003 Regulations) as being unconstitutionally vague.3 The Court issued its
decision and order regarding Applicants’ Motion for Summary Judgment on February
2, 2010. In re Highlands Development Co., LLC and JAM Golf, LLC Master Plan
1 Many of these units have already been constructed or approved, leaving 50 units in four development areas at issue in this appeal. In re Highlands Development Co., LLC and JAM Golf, LLC Master Plan Application, No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2, 2010), slip op. at 8; also see footnote 5 for an explanation of why the number of units was reduced from 358 to 357. 2 In addition, Marie Ambusk has informational status in this appeal, but has not entered an appearance as a party. 3 In that motion, Applicants sought invalidation of eight provisions of the 2003 Regulations applicable to their master plan application: § 15.18(A)(4), § 15.18(A)(5), § 15.18(A)(6), § 15.18(A)(10), § 15.18(B)(1), § 15.18 (B)(2), § 15.18 (B)(3), and § 15.18 (B)(4). 1 Application, No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2, 2010) (the Summary Judgment
Decision).
In that decision, the Court granted summary judgment in favor of the City with
regard to §§ 15.18(A)(5), (A)(6), and (B)(4) in their entirety, and with regard to
§§ 15.18(A)(4), (A)(10), and (B)(2) in certain respects, determining that those specific
provisions were not unconstitutionally vague. Id. at 31. The Court granted summary
judgment in favor of Applicants with regard to §§ 15.18(B)(1) and (B)(3) in their
entirety, and with regard to § 15.18(A)(4) in certain respects, determining that those
specific provisions were unconstitutionally vague. Id. With respect to the remainder of
§§ 15.18(A)(4), (A)(10), and (B)(2) the Court denied summary judgment on the basis
either that material facts had not been provided to the Court or that resolution of the
motion was premature at that time. Id. at 31–32.
Applicants moved for reconsideration of the Summary Judgment Decision under
V.R.C.P. 59(e). Applicants ask this Court to reconsider its conclusions regarding those
sections on which it ruled in favor of the City or ruled that summary judgment was
premature (§§ 15.18(A)(4), (A)(5), (A)(6), and (A)(10), and §§ 15.18(B)(2) and (B)(4)), and
to conclude that those provisions are unconstitutionally vague.4 The briefing schedule
was extended at the request of the parties; a further extension resulted from the fact that
a legible copy of one exhibit was requested by the Court (see note 6 below).
Standard Applicable to a Motion to Alter or Amend a Judgment
Although there is no specific authorization in the civil or environmental rules
governing a motion to “reconsider” a decision, the court treats such a motion as one to
4 Applicants also ask this Court to conclude that § 15.18(B)(3) is unconstitutionally vague based on the South Burlington Open Space Strategy. However, as the Court has already granted summary judgment to Applicants that “§ 15.18(B)(3) is too vague to be applied by the court to the contested development areas,” id. at 19, it is unnecessary to reach this additional argument for its vagueness. 2 alter or amend a judgment under V.R.C.P. 59(e). In re Appeal of Berezniak, No. 171-9-
03 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.). Vermont Rule of Civil
Procedure 59(e), which is substantially identical to Federal Rule 59(e), “gives the court
broad power to alter or amend a judgment on motion.” Drumheller v. Drumheller,
2009 VT 23, ¶ 28 (quoting V.R.C.P. 59, Reporter's Notes). Rule 59(e) is a codification of
the trial court's “inherent power to open and correct, modify, or vacate its judgments.”
Id. (citing West v. West, 131 Vt. 621, 623 (1973)).5
A Rule 59(e) motion “allows the trial court to revise its initial judgment if
necessary to relieve a party against the unjust operation of the record resulting from the
mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v.
Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996) (citing In re Kostenblatt, 161 Vt. 292,
302 (1994)). The limited functions of a motion for reconsideration are “to correct
manifest errors of law or fact on which the decision was based, to allow the moving
party to present newly discovered or previously unavailable evidence, to prevent
manifest injustice, or to respond to an intervening change in the controlling law.” In re
Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10,
2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure:
Civil § 2810.1 (2d ed. 1995)); see also Appeal of Van Nostrand, Nos. 209-11-04 &
101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.). A motion for
reconsideration should not be used to “relitigate old matters” or “raise arguments or
5 The Court considers motions for reconsideration or to alter or amend orders resulting from pretrial motions under its “inherent powers to reconsider interim decisions[] so as to avoid error or manifest injustice.” In re Mastelli Constr. Application, No. 220-10-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Nov. 14, 2008) (Durkin, J.), aff’d, Supreme Ct. No. 2009- 072 (Sept 4, 2009) (unpub. Mem.); see also In re Sisters & Bros. Inv. Group, LLP, No. 106- 5-06 Vtec, slip op. at 1–2, n.1 (Vt. Envtl. Ct. June 27, 2007) (Durkin, J.), aff’d, 2009 VT 58 (stating that “the more appropriate discretionary exercise” with such a motion “is to review it as a more general reconsideration request”)(citing Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 182 (1987). 3 present evidence that could have been raised prior to entry of the judgment.” Id.
Similarly, mere disagreement between the moving party and the court is not grounds
for reconsideration. In re Boutin PRD Amendment, No. 93-4-06 Vtec, slip op. at 1–2 (Vt.
Envtl. Ct. May 18, 2007) (Wright, J.).
Applicable Principles of Statutory Construction
In general, as stated in the Summary Judgment Decision, courts are directed to
approach regulatory construction in the same manner as statutory interpretation. In re
Williston Inn Group, 2008 VT 47, ¶ 14, 183 Vt. 621. In the present case, the Court must
apply at least two principles of statutory construction. Applicants argue that the two
principles conflict, and that one should take precedence over the other.
The first principle of statutory construction applicable to this case is that the
Court should construe the 2003 Regulations “to avoid constitutional difficulties, if
possible,” In re G.T., 170 Vt. 507, 517 (2000), because a court should “not decide
constitutional questions unnecessarily.” In re Picket Fence Preview, 173 Vt. 369, 375
(2002) (citing State v. Clarke, 145 Vt. 547, 551 (1985)). Even if “constitutional issues have
been argued and briefed, they will not be considered by [the] Court unless disposition
of the case requires it.” State v. Patnaude, 140 Vt. 361, 368 (1981) (citing In re Wildlife
Wonderland, Inc., 133 Vt. 507, 520 (1975)). Therefore, as the Court stated in the
Summary Judgment Decision, “where a reasonable alternative for resolution exists, the
court will avoid overturning a regulation on constitutional grounds.” Summary
Judgment Decision at 14 (citing Central Vt. Ry., Inc. v. Dep’t of Taxes, 144 Vt. 601, 604
(1984)). This presumption of constitutionality, which is well established under Vermont
law, applies when a court analyzes a constitutional challenge to any type of statute or
regulation, not just to land use laws.
Another principle of statutory construction, specific to land use regulation,
establishes that “[b]ecause land use regulation is in derogation of the common law, any 4 ambiguity is resolved in favor of the landowner.” In re Bennington School, Inc., 2004
VT 6, ¶ 12, 176 Vt. 584 (quoting In re Miserocchi, 170 Vt. 320, 324 (2000)). See also, e.g.,
Kremer v. Lawyers Title Ins. Corp., 2004 VT 91, ¶ 8, 177 Vt. 553 (citing In re Vitale, 151
Vt. 580, 584 (1989)); Appeal of Weeks, 167 Vt. 551, 555 (1998). In the present appeal, if
the Court determines that the 2003 Regulations are ambiguous, it must resolve the
ambiguity in favor of Applicants.
These two principles of regulatory construction do not necessarily conflict with
one another, nor are they necessarily mutually exclusive in practice. Applicants argue
that the Court applied the presumption of constitutionality at the expense of the
principle that ambiguities are to be resolved in favor of the landowner, claiming that the
latter is the “most important statutory-interpretation canon applicable to interpreting
land-use regulations.” Applicants’ Motion for Reconsideration, at 1 (Mar. 5, 2010)
[hereinafter Motion for Reconsideration]. However, to the extent possible, the Court
considers both principles when analyzing any contested regulations.
Section 15.18(A)(4) of the 2003 Regulations
Section 15.18(A)(4) of the 2003 Regulations requires that:
The project’s design respects and will provide suitable protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. In making this finding the DRB shall utilize the provisions of Article 12 of these Regulations related to the wetlands and stream buffers, and may seek comment from the Natural Resources Committee with respect to the project’s impact on natural resources. In the Summary Judgment Decision, the Court held that this section was
unconstitutionally vague as it related to “unique natural features,” but held that it was
constitutional as it related to “wetlands” and “streams” because of the reference to
Article 12 of the 2003 Regulations. Summary Judgment Decision at 18. With respect to
“wildlife habitat,” however, the Court determined that “material facts [were] in dispute, 5 or at least ha[d] not been provided to the Court, to allow the Court to determine
whether the Open Space Strategy identifies the ‘wildlife habitat’ that must be protected
and defines what level of protection of wildlife habitat is ‘suitable’ in this location,” as
the parties had not provided a copy of the Open Space Strategy. Id. at 18–19.
The Court has now been provided with a legible copy of the Open Space
Strategy, an undisputed exhibit that had not previously been provided.6 In the current
motion, Applicants essentially renew their motion for summary judgment with regard
to § 15.18(A)(4), only as it relates to protection of “wildlife habitat,” on the basis of this
newly-provided exhibit.
In order to be upheld as it relates to “wildlife habitat,” § 15.18(A)(4), considered
together with the Open Space Strategy, must provide sufficient standards for the Court
to apply, first, in identifying what “wildlife habitat” is to be protected, and, second, in
determining whether the project “respects and will provide suitable protection to” that
wildlife habitat. Although the Open Space Strategy does specifically identify and map
some wildlife “sightings” and wildlife “corridors” in South Burlington, see Open Space
Strategy, at 16–23 (involving “Public Resource Mapping” and the “Natural and Built
Resource Inventory”), neither the strategy nor the regulation provides standards for the
DRB or this Court to determine when a “project’s design respects and will provide
suitable protection to” any of the identified wildlife habitats, or, indeed, how to tell how
much protection is “suitable.” Thus, even considering the Open Space Strategy as
having been incorporated by reference7 in § 15.18(A)(4), that section as it relates to
6 A photocopied version of this 2002 document, with an illegible legend on each map page, was provided with the memoranda on the present motion; at the request of the Court, a legible copy of the document was filed with the Court on June 17, 2010. 7 In addition, the paragraph describing “Wildlife Sightings and Corridors” on page 19
of the Open Space Strategy refers the reader for “more detailed information” to yet another document that has not been provided to the Court: “Where the Wild Things 6 “wildlife habitat” does not articulate standards specific enough to guide
decisionmakers and applicants in analyzing a proposal. Therefore, § 15.18(A)(4) as it
relates to “wildlife habitat” is unconstitutionally vague and unenforceable.
Section 15.18(A)(5) of the 2003 Regulations
Section 15.18(A)(5) of the 2003 Regulations requires that:
The project is designed to be visually compatible with the planned development patterns in the area, as specified in the Comprehensive Plan and the purposes of the zoning district(s) in which it is located. As stated in the Summary Judgment Decision, in order for § 15.18(A)(5) to be
upheld it must lay out “sufficient standards for the Court to apply, first, to identify
what the ‘planned development patterns’ are in the area by looking to the
[Comprehensive] Plan and the purposes of the zoning district, and, second, to
determine whether the proposed project will be ‘visually compatible’ with those
planned development patterns.” Summary Judgment Decision at 21. In the present
motion, Applicants do not seek reconsideration of the Court’s conclusion that the
purpose statement found in § 9.1 of the 2003 Regulations, along with Chapter VII of the
Comprehensive Plan, were specific enough to define the “planned development
patterns” of the area. Id. at 21–23.
In the Summary Judgment Decision at 24, the Court determined that the
standard stated in § 15.18(A)(5) requiring the project to be “visually compatible” with
the planned development patterns in the area is a sufficient standard to guide the
reviewing body and is not impermissibly vague. Although this is a municipal
application rather than one under Act 250, 10 V.S.A. ch. 151, and although expert
testimony may be required on visual compatibility, the Court ruled that the “visually
Are: Large Mammal Habitats and Corridors in South Burlington, Vermont,” apparently published by the Winooski Valley Park District. 7 compatible” component of § 15.18(A)(5) could be analyzed in the context of the first
prong of the so-called Quechee Lakes test. First articulated by In re Quechee Lakes
Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact, Concl. of Law, & Order,
at 18–20 (Vt. Envtl. Bd. Nov. 4, 1985), this test “guides a reviewing body in determining
a project’s compatibility with the surrounding area by asking: ‘Will the proposed
project be in harmony with its surroundings—will it “fit” the context in which it will be
located.’” Summary Judgment Decision at 24. The Court concluded that the “historical
usage” of the first prong of the Quechee Lakes test “provides adequate guidance to a
reviewing body in applying § 15.18(A)(5).” Id. Applicants seek reconsideration of the
concept that the first prong of the Quechee Lakes test can be used to provide guidance
when applying the “visually compatible” component of § 15.18(A)(5). Motion for
Reconsideration, at 16–17.
Applicants argue that the “compatibility” standards found within the first prong
of the Quechee Lakes test have “vitality . . . only in conjunction with six other
subcriteria for just making the determination as to whether the impact of development
is adverse.” They argue that the “compatibility” component of the Quechee Lakes test
is not a “standard unto itself” that may be used under § 15.18(A)(5). Motion for
Reconsideration at 16. The Court did not intend to suggest that the compatibility
component of the Quechee Lakes test should be applied directly to this municipal
decision. Rather, the existence of the Quechee Lakes compatibility analysis, already
well-established by the time the 2003 Regulations were adopted, shows that visual
compatibility is a concept that can be applied by the decisionmaker, even if expert
evidence is necessary for that purpose.
Thus, when applied in light of the guidance offered by the history of Quechee
Lakes analysis, and expecting expert evidence on visual compatibility to assist the
Court, § 15.18(A)(5) is not unconstitutionally vague and unenforceable. Applicants’
motion to reconsider is denied as to § 15.18(A)(5). 8 Section 15.18(A)(10) of the 2003 Regulations
Section 15.18(A)(10) of the 2003 Regulations requires that the project be
“consistent with the goals and objectives of the Comprehensive Plan for the affected
district(s),” in the present case, the Southeast Quadrant.
Applicants first argue that § 15.18(A)(10) is unenforceable because “the Vermont
Supreme Court has already held that the applicable [Comprehensive] Plan is
unenforceable.” Motion for Reconsideration, at 8 (citing In re Appeal of JAM Golf, LLC,
2008 VT 110, ¶ 18, 185 Vt. 201). This argument overstates the Supreme Court’s holding
as to the South Burlington Comprehensive Plan in Appeal of JAM Golf.8 In that case, it
is essential to note that the Vermont Supreme Court first concluded that municipalities
do have authority to require proposed projects “to conform to their city plan” as long as
there is a “specific policy set forth in the plan,” and that policy is “stated in language
that is clear and unqualified, and creates no ambiguity.” Appeal of JAM Golf, 2008 VT
110, ¶¶ 16-19 (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520). See
also, e.g., 24 V.S.A. § 4414(3)(A)(ii) (defining the character of an area, for the purposes of
conditional use approval, by the “specifically stated policies and standards of the
municipal plan” (emphasis added)). Thus, the City had authority to enact
§ 15.18(A)(10); the issue for analysis is instead whether the Comprehensive Plan is
sufficiently specific and unambiguous as to any applicable goal or objective.
In analyzing municipal regulations that require conformance with a municipal
plan such as the South Burlington Comprehensive Plan, the Supreme Court has
declined to apply any provision of the plan that “sets forth an abstract policy . . . but
provides no specific standards to enforce the policy, or is at best, ambiguous and in
conflict with applicable zoning provisions.” John A. Russell Corp., 2003 VT 93, ¶ 17
8 Although the City adopted a revised Comprehensive Plan in 2006, the master plan application that is the subject of the present appeal is to be reviewed under the 2001 Comprehensive Plan, the same Comprehensive Plan at issue in Appeal of JAM Golf. 9 (internal citations and quotations omitted). See also, e.g., Appeal of JAM Golf, 2008 VT
110, ¶ 17 (“[C]ity authorities may not deny permission for a project when there is not a
‘specific policy set forth in the plan.’” (quoting John A. Russell Corp., 2003 VT 93, ¶ 16).
Based on this reasoning, in Appeal of JAM Golf the Supreme Court concluded that
certain “aspects” of the Comprehensive Plan were “too ambiguous to be enforceable.”
Id. at ¶¶ 18–19. Specifically, the Court held that the provisions of the Comprehensive
Plan requiring proposed projects to “protect wildlife corridors and habitat” and
“protect scenic views,” in combination with the plan’s “general policy of promoting
growth and residential development in the Quadrant,” were vague and unenforceable
as applied to the Taft Subdivision development area under the 2002 Regulations. Id.
On the other hand, the Supreme Court did not hold that the Comprehensive Plan
as a whole was unconstitutionally vague and unenforceable, and did not conduct a
constitutional analysis regarding any other provisions of the Comprehensive Plan as no
other provisions were at issue in that appeal. Accordingly, it is appropriate for this
Court to consider other aspects of the Comprehensive Plan, not specifically struck down
by the Supreme Court in Appeal of JAM Golf, as applied to the four development areas
at issue in the present master plan application. It is also appropriate for this Court to
limit its analysis to only those provisions of the Comprehensive Plan that are
specifically at issue in the present appeal, just as the Supreme Court limited its analysis
in Appeal of JAM Golf.9
9 As this Court discussed in the Summary Judgment Decision at 28, to pronounce on the constitutionality of the 2001 Comprehensive Plan as a whole, or on any other provisions of the Comprehensive Plan not at issue regarding Applicants’ master plan application, would require the Court to rule on an unnecessary constitutional issue and would constitute an improperly advisory opinion. See In re Picket Fence Preview, 173 Vt. 369, 375 (2002) (stating that courts should “not decide constitutional questions unnecessarily”)(citing Clarke, 145 Vt. at 551). See also State v. Patnaude, 140 Vt. 361, 368 (1981) (stating that constitutional issues “will not be considered by this Court unless disposition of the case requires it”) (citing Wildlife Wonderland, 133 Vt. at 520). 10 Applicants also incorrectly characterized the Summary Judgment Decision as
having “affirmed the DRB’s conclusion that the ‘west-to-east layout’ proposed by the
Heatherfields/Lot 108 area and the ‘installation of road infrastructure across this area
directly contradicts the Comprehensive Plan.’” Motion for Reconsideration, at 8
(emphasis added). To the contrary, in the Summary Judgment Decision, the Court did
not even reach the merits of the application under § 15.18(A)(10), much less “affirm”
any of the DRB’s conclusions.10 Rather, the Court only reached the issue of whether the
specific goals and objectives of the Comprehensive Plan for the Southeast Quadrant
relating to the lot layout and road infrastructure of the Heatherfields/Lot 108 area were
specific enough to withstand a constitutional challenge. All the Court concluded was
that the Comprehensive Plan provisions were sufficiently specific to be applied to the
lot layout and road infrastructure of the Heatherfields/Lot 108 area on the merits of the
master plan application. Summary Judgment Decision at 29. The Court did not reach a
decision on the merits of the master plan application under § 15.18(A)(10) or any other
provision of the 2003 Zoning Regulations. The issue of whether the master plan
application, as to the lot layout and road infrastructure of the Heatherfields/Lot 108
area, is “consistent with the goals and objectives of the Comprehensive Plan for the
[Southeast Quadrant] district” will be determined when the Court considers the merits
of the application. Further, as discussed in the Summary Judgment Decision, “[i]f any
10 In any event, by statute and rule, Applicants’ appeal in this Court is de novo. V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). The Court does not review the DRB decision and does not affirm (or reverse) any of its conclusions. Rather, the Court applies “the substantive standards that were applicable before the tribunal appealed from” and reaches an independent decision on the merits of those aspects of the master plan application raised by the Statement of Questions. 10 V.S.A. § 8504(h); V.R.E.C.P. 5(g). In a de novo appeal such as this one, the Court “hear[s] the evidence anew ‘as if it had not been heard before and as if no decision had been previously rendered.’” In re Godnick Family Trust Permit & Variance Application, No. 52-4-09 Vtec, slip op. at 5 (Vt. Envtl. Ct. Jan. 6, 2010) (Durkin, J.) (quoting State v. Madison, 163 Vt. 360, 370 (1995)). 11 other elements of the goals and objectives of the Comprehensive Plan for the Southeast
Quadrant are sought to be applied by the City to the merits of any of the four contested
development areas, the constitutional vagueness analysis [of § 15.18(A)(10)] will have to
be addressed, as applied, at that time. Summary Judgment Decision at 30.
Therefore, Applicants’ motion to reconsider is denied as to § 15.18(A)(10).
Section 15.18(B)(2) of the 2003 Regulations
Section 15.18(B)(2) of the 2003 Regulations requires that:
Building lots, streets and other structures shall be located in a manner that maximizes the protection of open character, natural areas, and scenic views of the Quadrant identified in the Comprehensive Plan, while allowing carefully planned development at the overall base densities provided in these Regulations. As the Court stated in the Summary Judgment Decision at 25, in order for
§ 15.18(B)(2) to survive constitutional scrutiny, it must provide sufficient standards for
the Court to apply to determine what open character, natural areas, or scenic views of
the Southeast Quadrant are identified in the Comprehensive Plan. It also must provide
sufficient standards to allow the Court to determine whether the lot layout, that is, the
location of building lots, streets, and other structures, “maximizes the protection” of
those listed features.” However, to avoid reaching an unnecessary constitutional
question, the Court declined to rule on summary judgment as to the constitutionality of
§ 15.18(B)(2), until or unless the protection of “open character,” “natural areas” or
“scenic views” would actually be argued to be applicable to the merits of any of the
four contested development areas. Id. at 25–26.
In the present motion, Applicants reiterate their argument that § 15.18(B)(2)
should be struck down as unconstitutionally vague on its face. Applicants continue to
disagree that the term “maximize” can ever be sufficiently definite to establish a
required degree of protection.”
12 The Court has fully considered this argument and declines to alter its decision to
refrain from ruling on the constitutionality of § 15.18(B)(2) on its face, because neither
party appears to claim that § 15.18(B)(2) is applicable to the merits of any of the four
contested development areas. Unless and until the features listed in § 15.18(B)(2)—as to
the “open character,” “natural areas” or “scenic views” of one of the contested
development areas—are applicable to the Court’s consideration of the master plan
application as to the four contested development areas, the Court declines to rule on the
constitutionality of that provision. See note 9, above. Accordingly, Applicants’ motion
to reconsider is denied as to § 15.18(B)(2).
Sections 15.18(A)(6) & 15.18(B)(4) of the 2003 Regulations
Section 15.18(A)(6) of the 2003 Regulations requires that:
Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas.
Section 15.18(B)(4) of the 2003 Regulations requires that:
Consistent with [§ 15.18(B)(1) through (3)], dedicated open spaces shall be designed and located to maximize the potential for combination with other open spaces on adjacent properties.
In the Summary Judgment Decision, the Court characterized both of these
sections as “focus[ing] on preserving the potential for creating contiguity of open space
on the project property with open space on adjacent property,” and distinguished them
from the quite different issue of “convenient allocation and distribution of common
open space” struck down in Appeal of JAM Golf, LLC, No. 69-3-02 Vtec, slip op. at 5-6
(Vt. Envtl. Ct. June 12, 2009). Summary Judgment Decision at 19.
The Court has reviewed the parties’ arguments and the reasoning of the
Summary Judgment Decision, and declines to change the Summary Judgment Decision
as to §§ 15.18(A)(6) and (B)(4) of the 2003 Regulations. The Court is able to determine 13 from the plain language of these sections that the resource to be protected is the
potential or opportunity for making any open space on the project property continuous
with open space, including stream buffers, existing on adjacent property. The Court is
also able to determine from the plain language of these sections that the degree of
protection is to “maximize” that potential, that is, to ensure to the greatest extent
possible that development and open space on the site are located so as to avoid blocking
the future opportunity to link such open space with open space existing on adjacent
property.
The Court therefore declines to alter its conclusion that §§ 15.18(A)(6) and (B)(4)
are sufficiently definite to be applied by the Court to the contested development areas.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Applicants’ Motion for Reconsideration or to Alter or Amend is Granted as to
§ 15.18(A)(4) with respect to “wildlife corridors,” as discussed above, and is otherwise
denied. A telephone conference has been scheduled (see enclosed notice) to discuss the
issues that remain in this appeal after the resolution of the motions, to discuss whether
mediation of any of those issues might now be appropriate, and to discuss the
scheduling of this matter for trial.
Done at Berlin, Vermont, this 21st day of September, 2010.
_________________________________________________ Merideth Wright Environmental Judge