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In Re Woodstock Community Trust and

October 26, 2012

IN RE WOODSTOCK COMMUNITY TRUST AND HOUSING VERMONT PRD (APPEAL OF ROY, ET AL., APPELLANT) IN RE WOODSTOCK COMMUNITY TRUST AND HOUSING VERMONT ACT 250 APPLICATION (APPEAL OF ROY ET AL., APPELLANT)


On Appeal from Superior Court, Environmental Division June Term, 2012 Merideth Wright, J.

The opinion of the court was delivered by: Dooley, J.

In re Woodstock Community Trust and Housing Vermont PRD (2011-398)

2012 VT 87

Supreme Court

PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.

¶ 1. Neighbors of a proposed affordable housing development appeal an Environmental Division decision affirming a decision of the Town of Woodstock Development Review Board (DRB) granting appellee-applicants Woodstock Community Trust and Housing Vermont (hereinafter collectively referred to as WCT) a zoning permit and a decision of the District 3 Environmental Commission, granting an Act 250 Land Use Permit. The Environmental Division had reversed an earlier decision of the DRB granting a permit,*fn1 but upon WCT's reapplication, and another favorable decision from the DRB, the Environmental Division affirmed, finding that the deficiencies of the first application had been corrected. Following the second DRB decision, WCT went to the Environmental Commission and obtained an Act 250 permit; the Environmental Division also affirmed the grant of this permit. Neighbors argue that: (1) the successive-application doctrine should have barred the submission of the second zoning permit application; (2) the second application failed to correct the problems of the first application; (3) certain of the Environmental Division's findings with respect to the Act 250 permit were clearly erroneous; (4) the court erred by denying a motion to stay this proceeding; and (5) the Environmental Division erred by conditioning approval on a water easement's location being drawn on the plan. We affirm.

¶ 2. WCT presented its proposed development to the Woodstock DRB in June 2007, and the board approved this initial application. Neighbors of the project appealed the DRB's decision to the Environmental Division, which held that the proposed project failed to meet a number of requirements under the Town of Woodstock Zoning Regulations.*fn2 The court identified the following problems with the first application: a parking lot contained several spaces that were planned to be built on what the court determined to be a protected wet area, the storm water disposal system was inadequate, the buffer between the development and properties of neighbors was not sufficient, and there was a lack of ownership and maintenance documents providing for a legal mechanism to protect open space. The court went on to note that WCT could make a future application that addressed the deficiencies in the application.

¶ 3. Several months after this decision, WCT did submit a second application to the DRB, along with an Act 250 permit application to the District 3 Environmental Commission, both of which were subsequently approved. The neighbors appealed both these decisions to the Environmental Division, and the appeals were consolidated. During this second appeal, neighbors moved to stay the proceedings pending the outcome of related property rights litigation in the Civil Division of the Superior Court regarding neighbors' water easements on the development property.*fn3 The Environmental Division denied the motion to stay, and, in a ruling on cross-motions for summary judgment, concluded that the application was not an impermissible successive application. In its decision after trial, the court went on to conclude that the application sufficiently addressed the court's concerns with the first application, and it granted the permits on the condition that the location of a neighbor's water easement be drawn on the existing conditions plan. This appeal followed.

I

¶ 4. Neighbors first argue that the second application should have been barred by the successive-application doctrine. The successive-application doctrine represents an implementation of issue preclusion, as adapted to the specific context of multiple zoning applications. In re Armitage, 2006 VT 113, ¶ 4, 181 Vt. 241, 917 A.2d 437. Issue preclusion serves to prevent the relitigation of issues that have already been settled in a previous action. See State v. Pollander, 167 Vt. 301, 304 n.2, 706 A.2d 1359, 1360 (1997). The successive-application doctrine reflects the necessarily iterative zoning and planning process in that it enforces a more relaxed standard of issue preclusion than is applicable in other contexts.

¶ 5. The basic description of the doctrine is found in In re Carrier: "a zoning board . . . 'may not entertain a second application concerning the same property after a previous application has been denied unless a substantial change of conditions had occurred or other considerations materially affecting the merits' of the request have intervened between the first and second application." 155 Vt. 152, 158, 582 A.2d 110, 113 (1990) (quoting Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985)). We went on to say in Carrier that a second application can be granted "when the application has been substantially changed so as to respond to objections raised in the original application or when the applicant is willing to comply with conditions the commission or court is empowered to impose." Id.

¶ 6. Neighbors contend that more recent decisions add an additional element to the successive-application doctrine. See In re McGrew, 2009 VT 44, 186 Vt. 37, 974 A.2d 619; Armitage, 2006 VT 113. They argue based on these cases that a second application is not allowed if the applicant could have, and should have, included the corrective elements in the first application. We disagree. Indeed, the absence of this additional element is what distinguishes the successive-application doctrine from the more inclusive standard of issue preclusion.

¶ 7. Armitage and McGrew are examples of cases where there was no change of conditions. In Armitage, the first application was denied, in part, because of a traffic deficiency--left turns from the project onto Route 7 would increase traffic volume on that route. 2006 VT 113, ¶ 10. With respect to that deficiency, the revised application had no changes to the development proposal but instead the applicant submitted additional evidence to show that the earlier decision was wrong on this point. In denying the second application, we noted that there was no indication that the additional evidence was unavailable at the time of the first trial. Id. McGrew is similar. See 2009 VT 44, ¶¶ 12-13. The point of these decisions is not that the second application can be denied where there is a substantial change in the project to meet the first decision any time that the change could have been made before the first decision. Instead, these decisions suggest that even without substantial change in the project there could be a successive application if it is based on new evidence unavailable at the time of the first application.

¶ 8. We turn now to the application of the successive-application doctrine in this case. The Environmental Division denied the initial application because the development proposal did not comply with the local zoning ordinance in four ways.*fn4 First, the proposal failed to properly buffer the development from adjacent homes as required by Woodstock zoning ordinance § 313(B)(2)(a). Second, the proposal failed to satisfy § 313(A)(9)'s requirement for the preservation of wet areas. Third, the proposal violated § 313(A)(8) because it failed to specify how the management and maintenance responsibilities would be divided among the organizations and what legal mechanism would be used to protect the land reserved as private open space. Finally, the stormwater drainage system did not meet the requirements of § 313(A)(5), (C)(3)(h), (C)(3)(i), and § 709(B)(5) because a drainage swale was improperly designed and the developer did not meet its burden of showing that the system would adequately control stormwater and account for its discharge into a nearby brook. Neighbors argue that the successive-application doctrine should have barred the second application because it failed to address these problems and was merely a resubmission of the first application with additional evidence as prohibited by Armitage.

¶ 9. The second application had an assortment of changes enumerated in the project narrative submitted to the DRB. The DRB was satisfied with the changes, explicitly rejected the assertion that the second application was impermissible as a successive application, and approved the new plan with a vote of 6-0. Ruling on cross-motions for summary judgment, the Environmental Division, too, found that the changes were substantial enough to overcome the bar of the successive-application doctrine and approved the decision of the review board. We affirm the decision of the Environmental Division.

¶ 10. The applicant bears the burden of showing changed circumstances. See Carrier, 155 Vt. at 158, 582 A.2d at 114. The second application contained various changes that were directed at rectifying the deficiencies identified in the first application by the Environmental Division. In order to rectify the open space buffer between the project and neighboring landowners, the central loop road was tightened, moving the development away from the neighbors and expanding the buffer zone. The central trash and recycling center was also removed as part of the effort to create an adequate buffer. Additionally, the revised application eliminated seven parking spaces to prevent the disturbance of what the Environmental Division determined to be a protected wet area. It also included a draft community declaration which outlined the planned ownership and management structure of the development.

¶ 11. Neighbors particularly focus on the stormwater disposal system, arguing that with respect to this aspect of the plan, WCT submitted only new evidence for an unchanged proposal. WCT changed the stormwater drainage system in the first application just before trial, and many of the elements of the system were incomplete. The Environmental Division rejected the system in the first application for two reasons. First, with respect to stormwater from the surrounding undeveloped hillsides, the project plan proposed to divert this stormwater around the developed area with the use of a steep and wide drainage swale that would require the cutting down of many trees. The court rejected this swale design. With respect to the runoff from the developed area, the application was sketchy and incomplete. The court ruled that "[i]t is not enough at this final approval stage to explain that the drainage proposal has only recently been redesigned and that any problems can be adjusted during construction." In the second application, WCT redesigned the swale to respond to the objections of the court. It also provided a complete and detailed description of all of the elements of the system, along with permits from the Agency of Natural Resources for the redesigned system.

¶ 12. We agree with both the review board and the Environmental Division that these changes were adequate to constitute a substantial change of conditions. They are in line with what we and other courts have often recognized as sufficient to overcome the principle of the successive-application doctrine. See Carrier, 155 Vt. at 159, 582 A.2d at 114 (holding that redesigned interior road network, reconfigured lots, and updated landscaping were substantial changes); Malmstrom v. Zoning Bd. of Appeals, 207 A.2d 375, 377-78 (Conn. 1965) (holding that change of location for building and parking area, along with parking area's reduced size were change of conditions); Russell v. Bd. of Adjustment, 155 A.2d 83, 88 (N.J. 1959) (holding that five-foot increase in front setback and decrease in lot coverage from eighteen to twelve percent constituted sufficient change); Peterson v. City Council, 574 P.2d 326, 331 (Or. Ct. App. 1978) (holding that smaller building and modified setbacks were change of conditions).

ΒΆ 13. In their brief, neighbors put a great deal of emphasis on the statements of the project architect who characterized the changes to the project as "subtle." Neighbors argue that WCT is bound by this admission, and the court could not find the changes substantial in light of the admission. In fact, the architect's statement, even if it somehow binds WCT, is not inconsistent with WCT's position. Under the successive-application doctrine, the applicant can change the project to respond to the deficiencies that caused the denial of the permit application however small the changes are in the context of the overall project. Here, the ...


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