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In re Willowell Foundation Conditional Use Certificate of Occupancy

Supreme Court of Vermont

January 29, 2016

In re Willowell Foundation Conditional Use Certificate of Occupancy (Andrew Higbee, Jr. and Sheryl Knauth, Appellants)

On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.

James W. Runcie of Ouimette & Runcie, Vergennes, for Appellants.

F. Rendol Barlow, Mark L. Sperry and Wanda Otero-Weaver of Langrock Sperry & Wool, LLP, Middlebury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned


¶ 1. 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. Neighbors challenge the permit. They argue the project violates a subdivision condition mandating agricultural use, claim additional failings of Willowell's application, and contend the Superior Court, Environmental Division, erred in several ways in upholding the permit approval. We affirm.

¶ 2. 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 (2012), [hereinafter UPD], which combines the Town's zoning regulations and subdivision regulations. Willowell's plot is Lot 6 of the Perry Flint & Hartshell Co. Subdivision, also known as the Hoag Farm Subdivision, which the previous owners created prior to conveying the property to Willowell in 2005. The subdivision also includes Lots 2 through 5. The Monkton Planning Commission approved and signed the subdivision plat, which states: "Approved by resolution of the Town of Monkton Planning Commission, Vermont, on the 28th day of May 2000, subject to all requirements and conditions of said resolution." All copies of the written resolution have disappeared, however, and thus the resolution was not introduced into evidence. The minutes of the meeting at which the resolution was passed are also lost. The plat, which was in evidence, outlines a "Building Envelope" on each lot, with the following explanation: "Each lot contains one building envelope with a proposed house site. All building envelopes have a set-back distance of 50 feet from lot lines unless otherwise labeled." The plat also depicts areas labeled "Agricultural Reserve, " one of which covers a portion of Willowell's property. On Willowell's lot, the "Agricultural Reserve" area seems not to overlap with the "Building Envelope, " although the envelope's lines do not appear to connect in at least one place, so the envelope is not a closed shape.

¶ 3. The proposed project includes Willowell's offices, a preschool with two classrooms, an art gallery, a multipurpose room, a library that incorporates an existing silo, a teaching kitchen, a farm stand, a garden, a farm-manager house, a relocated and rebuilt partially existing barn, a goat shed, two hoop houses, a widened existing access road, and a parking area. Many of these structures would be located outside of the "Building Envelope." Some would be sited within the "Agricultural Reserve, " including the farm-manager house, garden, septic system, and other infrastructure.

¶ 4. Since Willowell acquired the land in 2005, it has used the project site three days per week to run the Walden Project, an alternative outdoor education program for high school students. Willowell also conducts small agricultural and educational programs on the project site. The foundation plans to conduct similar programs in the proposed community center and related improvements. Its mission is to foster connections between the arts, education, and the environment through educational community activities that focus on agriculture.

¶ 5. For the RA 2 MD, where the project is located, the UPD lists permitted and conditional uses. Permitted uses include "agricultural and forest uses, " "one family dwelling, " and "public outdoor recreation"; conditional uses include "Art Gallery, " "Commercial Day Care Center for Children, " and "Community Center." For a proposed development that is "neither specifically prohibited nor permitted nor listed" as a conditional use, the UPD provides that 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 are permitted uses in the RA 2 MD, but others are either conditional uses or not listed, Willowell applied to the DRB for a conditional-use permit, which necessarily entailed a site plan review. Among other review criteria, the UPD requires that any proposed conditional use will not result in any undue adverse effect on "[b]ylaws and ordinances in effect."

¶ 6. The DRB approved Willowell's application, subject to certain conditions. One interested party, who was later dismissed from the case, appealed the decision to the Environmental Division, and Willowell cross-appealed. Neighbors, appellants in this appeal, first entered appearances at the Environmental Division. 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. In concluding its decision, the Environmental Division stated that Willowell shall file with the Monkton Zoning Administrator a revised site plan incorporating the required changes, and that, upon receipt of the revised site plan, the Zoning Administrator shall issue a zoning permit consistent with the court's decision.

¶ 7. Although the parties raised many issues in their briefing, motions, and arguments before the DRB and the Environmental Division, neighbors raise only four issues on appeal: (1) whether Willowell's application was fatally incomplete because it did not submit certain state permits with its conditional-use application; (2) whether the terms "Agricultural Reserve" and "Building Envelope" as used on the Hoag Farm Subdivision plat are enforceable land-use conditions restricting Willowell's property, and, if so, whether the proposed project complies with those conditions; (3) whether the Environmental Division erred in refusing to admit any extrinsic evidence to explain the conditions that were imposed on the Hoag Subdivision at the subdivision-approval meeting; and (4) whether the Environmental Division erred in directing the zoning administrator to issue a zoning permit upon receipt of a revised site plan. We review each claim in turn.

¶ 8. The first issue can be easily resolved: neighbors waived their argument regarding state permits by not raising it at the Environmental Division, so we will not consider it. See V.R.C.P. 76(e); V.R.E.C.P. 5(f); In re Hale Mountain Fish & Game Club, Inc., 2014 VT 54, ¶ 18, 197 Vt. 217, 103 A.3d 890; In re Garen, 174 Vt. 151, 156, 807 A.2d 448, 451 (2002).

¶ 9. Next, we must determine whether two phrases on the subdivision plat-"Agricultural Reserve" and "Building Envelope"-impose land-use restrictions on Willowell's project. Although additional language on the plat states, "Approved by resolution of the Town of Monkton . . . subject to all requirements and conditions of said resolution, " the parties agree that no resolution or definition section applying to the plat exists. Under § 360(C)(4) of the UPD, a proposed conditional use cannot result in any "undue adverse effect" on the "bylaws and ordinances then in effect." UPD § 360(C)(4). Each subdivision must conform to the UPD and the goals of Monkton's plan. UPD § 900(C). Willowell's project must comply with the UPD, including any applicable ...

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