In re Atwood Planned Unit Development (Kevin Trout, Dorothy Wilson, Graham McAfee, Linda McAfee, Steven Wyatt, Donna Wyatt, Jeff Marshall, Jack Manning, Suba Luck, Brian Stevens and Catherine Stevens, Appellants)
Appeal from Superior Court, Environmental Division Thomas G.
Christina A. Jensen of Lisman Leckerling, P.C., Burlington,
A. Killoran of Bauer Gravel Farnham, Colchester, for
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton,
1. A group of landowners (neighbors) adjacent to a proposed
planned unit development (PUD) challenge the Environmental
Division's affirmance of the PUD permit. On appeal,
neighbors argue 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 claim 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. We affirm in part and
reverse and remand in part.
2. In August 2014, Atwood Enterprises, Ltd., (Atwood) applied
to the Town of Jericho (the Town) for approval of a PUD.
Atwood's proposal involved using a roughly
twenty-eight-acre parcel taken from a larger piece of
farmland (the Davis property) and constructing a six-unit,
three-duplex subdivision with common lands (the project). The
Jericho Land Use and Development Regulations (the
regulations), effective February 7, 2013, govern approval of
3. Prior to the hearing before the Town's Development
Review Board (the DRB), Atwood posted notice of the hearing
on a tree located on Raceway Road, a public road adjacent to
the Davis property. The public roadway most nearly adjacent
to the project was Meadow Drive. According to an Atwood
representative, one of the Town's zoning employees
instructed the representative that the notice could be placed
on Raceway Road, on a tree adjacent to the project, rather
than on Meadow Drive. The hearing notice placard posted
stated that a public hearing would be held on September 25,
2014, at 7:00 p.m. In addition to the notice placard, the
Town published the hearing notice in a newspaper of general
circulation, posted it in two other public places, and mailed
copies to abutting land owners. At the September 25 hearing,
neighbors participated fully in the municipal proceeding.
Subsequently, on October 27, 2014, the DRB approved
Atwood's proposed subdivision plan. The decision
addressed a wide range of subjects covered by the
regulations, such as conditional-use review, site-plan
review, wetland setbacks, and regulations specific to PUDs.
Neighbors appealed this determination to the Environmental
4. Neighbors' original Statement of Questions on appeal
to the Environmental Division asked one question: "Does
the six-unit, three duplex PUD Subdivision on a 28.5 acre
portion of an approximate 123 acre parcel of land owned by
Atwood Enterprises, Inc. satisfy the requirements of the
Jericho Land Use and Development Regulations?"
5. The Environmental Division determined that this single
question was extremely broad and, as a result, ordered
neighbors to file an amended statement of questions setting
forth specific issues to be addressed on appeal. The
Environmental Division's order was based on Vermont Rule
of Environmental Court Proceedings 5(f), which governs the
procedure for submitting statements of questions.
Subsequently, in March 2015, neighbors filed the following
Amended Statement of Questions:
1. Does the six-unit, three duplex PUD Subdivision on a 28.5
acre portion of an approximate 123 acre parcel of land owned
by Atwood Enterprises, Inc. satisfy the requirements of the
Jericho Land Use and Development Regulations, including the
a. Whether the applicant has satisfied the procedural
requirements to obtain approval, such as the compliance with
the notice posting requirements of the Regulations and
b. Whether the proposed subdivision meets the requirements of
the Regulations applicable to planned unit developments;
c. Whether the proposed subdivision qualifies for and should
be entitled to waivers from the strict application ...