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In re Atwood Planned Unit Development

Supreme Court of Vermont

March 17, 2017

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)

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

          Christina A. Jensen of Lisman Leckerling, P.C., Burlington, for Appellants.

          Nicole A. Killoran of Bauer Gravel Farnham, Colchester, for Appellee.

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

          SKOGLUND, J.

         ¶ 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 the project.

         ¶ 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 Division.

         ¶ 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 following:
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 applicable law;
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 ...

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