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In re Hannaford

Supreme Court of Vermont

November 9, 2017

In re Hinesburg Hannaford Act 250 Permit In re Hinesburg Hannaford Site Plan Approval Mary Beth Bowman, et al., Appellants

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

          Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, and James A. Dumont of Law Office of James A. Dumont, Esq., P.C., Bristol, for Appellants.

          William H. Sorrell, Attorney General, and Kyle H. Landis-Marinello, Assistant Attorney General, Montpelier, for Appellee Vermont Natural Resources Board.

          David W. Rugh of Stitzel, Page & Fletcher, P.C., Burlington, for Appellee/Cross-Appellant Town of Hinesburg.

          Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Appellee/Cross-Appellant Martin's Foods of South Burlington, LLC.

          PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Wesley, Supr. J. (Ret.), Specially Assigned

          ROBINSON, J.

         ¶ 1. These two consolidated appeals challenge the Environmental Division's decisions concerning applications for site-plan approval and an Act 250 permit for the proposed construction of a Hannaford's supermarket in the Town of Hinesburg. We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.

         ¶2. Appellee/cross-appellant Martin's Foods of South Burlington, LLC (Hannaford) proposes to construct a 36, 000-square-foot grocery store and pharmacy with an adjacent 128-space parking lot on Lot 15 of the Commerce Park subdivision in Hinesburg. Lot 15, over four acres in size, is the largest of the fifteen lots in the subdivision, for which municipal and Act 250 permits were originally granted in 1987. The subdivision is located just north of the Hinesburg Village center within a triangular space formed by Route 116, Patrick Brook, and Mechanicsville Road. Route 116 runs north-south and is the main thoroughfare through Hinesburg. Mechanicsville Road runs northeast from Route 116, from just south of the subdivision, to the east end of Commerce Street. Commerce Street runs east-west parallel to Patrick Brook but within the subdivision north of Lot 15, connecting Route 116 and Mechanicsville Road to form the hypotenuse of the triangle in which most of the subdivision lies. Commerce Street Extension runs a short distance off Commerce street south into the subdivision toward Lot 15.

         (Image Omitted.)

         Section of June 2014 Route 116 Corridor Study Map

         ¶ 3. Lot 15, the last lot in the subdivision to be developed, is a four-sided irregularly-shaped lot bounded by existing development within the subdivision on two sides and by a canal and adjoining sidewalk running parallel to Mechanicsville Road. The canal was constructed over a century ago to provide water to a cheese factory. The relatively recently built sidewalk runs along the canal on the side opposite Mechanicsville Road. Vehicular access to the proposed project on Lot 15 would be by way of Commerce Street and then the Commerce Street Extension, which runs between existing developments located on the southern side of Commerce Street.

         (Image Omitted.)

         General Plan Sheet from 1986 Subdivision Plat Plan

         ¶ 4. The proposed project is a permitted use in the Town's Commercial Zoning District within the Hinesburg Village Growth Area and is subject to site plan review and conditional use approval under the Town's 2009 zoning regulations. Hannaford initially applied for site-plan and conditional use approval for the proposed project in November 2010. The Hinesburg Development Review Board (DRB) reviewed the application several times before the public hearing on the project was closed for the final time in October 2012. Following evidentiary hearings and site visits, the DRB approved the application with conditions in a written decision in November 2012. Appellants/cross-appellees, a group of Hinesburg residents that oppose the project (Neighbors), appealed the DRB decision to the Environmental Division, and Hannaford cross-appealed.

         ¶ 5. In March 2013, Hannaford filed its Act 250 application with the District #4 Environmental Commission. Hannaford sought approval under all Act 250 criteria except Criterion 2, relating to the water supply, because the Town was in the process of upgrading its municipal well system and did not have available capacity to support the project at the time of the application. In June 2014, after conducting site visits and evidentiary hearings, the District Commission issued its initial merits decision concluding that the project, with specified conditions, satisfied each Act 250 criterion except Criterion 2. The District Commission issued an amended set of findings and conclusions on July 23, 2014. Neighbors appealed this decision to the Environmental Division.

         ¶ 6. The Environmental Division coordinated the site-plan and Act 250 appeals with other appeals relating to the project. After deciding a series of pretrial motions regarding a wide variety of issues, the trial court conducted a site visit and merits hearing from November 30 through December 2, 2015. The parties stipulated to submit direct testimony and related exhibits to the court in advance of the merits hearing through prefiled testimony. Cross-examination, re-direct examination, and rebuttal testimony were then presented live at the trial. Among the numerous matters contested at trial were issues relating to stormwater management, traffic, aesthetics, and public investment in the canal sidewalk.

         ¶ 7. In April 2016, the trial court issued separate 23-page and 60-page decisions with accompanying judgment orders, approving, respectively, Hannaford's site-plan and Act 250 applications with conditions. In response to multiple post-trial motions regarding both decisions, the court issued an amended Act 250 decision and indicated that it was making no changes to its site-plan decision.[1] Neighbors appealed both decisions, and Hannaford and the Town of Hinesburg cross-appealed both. This Court consolidated the appeals for purposes of argument and decision.

         ¶ 8. In challenging the trial court's site-plan approval, Neighbors argue that: (1) the trial court erred in declining to enforce a setback limit reflected in the final plat plan for the subdivision as approved in 1987; (2) Hannaford's site-plan application violated "front yard" parking restrictions set forth in the Town's 2009 zoning regulations; (3) the east-west swale proposed in the site-plan application will not control and treat stormwater as predicted by Hannaford's expert; and (4) Hannaford did not satisfy its burden regarding stormwater control because part of the discharge system is proposed to be located on land outside of its control. In their cross-appeals, Hannaford and the Town challenge the trial court's condition requiring Hannaford to install a traffic signal at the intersection of Route 116 and Mechanicsville Road before the project may be completed, and the Town challenges the court's elimination in its amended decision of a condition requiring Hannaford to perform a post-development traffic study.

         ¶ 9. In challenging the trial court's Act 250 decision, Neighbors argue that: (1) the trial court erred in declining to enforce a provision in the original approved Act 250 master subdivision permit that development in the subdivision would be "small scale"; (2) the trial court improperly focused on the foreseeability of a commercial development on Lot 15 in determining whether the proposed project would materially interfere with the public's use and enjoyment of the canal path; and (3) Hannaford failed to dispute the uncontradicted testimony of Neighbors' expert that the east-west swale would not function as claimed because of the area's saturated soils. As in their site-plan cross-appeals, Hannaford and the Town reiterate their opposition to a condition requiring a traffic signal at the Route 116/Mechanicsville Road intersection. The Town also challenges the trial court's decision on reconsideration to eliminate the post-development traffic study requirement. The Natural Resources Board (NRB) has filed a brief in the Act 250 appeal asking this Court to uphold the condition that a traffic signal be placed at the Route 116/Mechanicsville Road intersection prior to operation of the proposed project.

         ¶ 10. For the reasons stated below, we conclude, with respect to the site-plan appeal, that Hannaford's proposed site plan violates the setback limit in the final plat plan approved in 1987. We conclude that Hannaford's parking scheme does not violate the site-plan approval standards in the applicable zoning regulations. We need not reach the issues raised in that appeal concerning the east-west swale and traffic control. Accordingly, we reverse the Environmental Division's approval of the site plan.

         ¶ 11. Regarding the Act 250 appeal, we conclude that the project does not violate a requirement in the original approved subdivision permit that development be primarily "small scale, " and that the proposed project would not materially interfere with the public's use and enjoyment of the canal path. We remand for further development of evidence concerning the east-west swale and traffic issues. Accordingly, we reverse the Environmental Division's approval of the Act 250 permit and remand the matter for further consideration. I. Standard of Review

         ¶ 12. Our general standard of review is not in doubt.[2] "We will defer to the court's factual findings and uphold them unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Wagner & Guay Permit, 2016 VT 96, ¶ 9, Vt., 153 A.3d 539 (quotation omitted). This is so because "the environmental court determines the credibility of witnesses and weighs the persuasive effect of evidence." In re Champlain Parkway Act 250 Permit, 2015 VT 105, ¶ 10, 200 Vt. 158, 129 A.3d 670. We review the court's legal conclusions without deference, but "we will uphold those conclusions if they are reasonably supported by the findings." Wagner & Guay Permit, 2016 VT 96, ¶ 9. II. Site-Plan Appeal A. Review of Zoning Regulations and Permit Conditions

         ¶ 13. The parties disagree about whether this Court owes any deference to the Environmental Division's interpretation of the Town's zoning ordinance. Neighbors contend that the interpretation of a zoning ordinance presents a legal issue that we review without deference to the Environmental Division, while Hannaford asserts that the deference we give to the Environmental Division with respect to findings of fact extends to its interpretation of zoning ordinances. We need not resolve this dispute in this appeal because our resolution of the issues raised by the parties would be the same under either proposed standard of review.

         B. Setback Limits

         ¶ 14. On appeal from the DRB to the Environmental Division, Neighbors argued that Hannaford's site plan violated a setback condition of the 1987 subdivision approval and that Hannaford had not sought a permit amendment from the Town. Specifically, Neighbors asserted that the proposed project violates a setback, reflected in the 1986 final approved plat plan for the subdivision, that is seventy-five feet from the canal running parallel to the southern side of the subdivision. In response, Hannaford asserted that: (1) the court was without jurisdiction to consider whether a subdivision permit amendment was required because it had not sought a permit amendment from the Town; and (2) in any event, the building setbacks depicted on the plat plan accompanying the 1987 subdivision approval did not establish enforceable conditions because they are unclear and had not been enforced by the Town with respect to other permitted projects within the subdivision.

         ¶ 15. The trial court acknowledged that it had no jurisdiction to consider whether the 1987 subdivision approval should be amended, given that Hannaford had not sought a permit amendment from the Town. The court determined, however, that although in 1987 the Town planning commission approved the subdivision as depicted on the final plat plan accompanying the subdivision application, the plat plan did not establish enforceable setbacks because: (1) the narrative in the planning commission's written decision approving the subdivision did not discuss or establish any required setbacks for lots within the subdivision; (2) although the plat plan includes a legend indicating various types of lines depicting setbacks, boundaries, waterways, and roads, it has no inscriptions or notes-other than a notation indicating a one-inch-per-100-foot scale-identifying any measured distances between the lines; and (3) the plat plan does not have an accompanying document indicating an intent to impose a setback restriction. Relying on a recent decision by this Court, the trial court concluded that the distances between the various lines on the 1986 plat plan were not "sufficiently clear to constitute land-use restrictions." In re Willowell Found. Conditional Use Certificate of Occupancy, 2016 VT 12, ¶ 15, 201 Vt. 242, 140 A.3d 179.

         ¶ 16. On appeal to this Court, Neighbors argue that the trial court erred by concluding that the seventy-five-foot building setback limit in the final approved plat plan for the original subdivision application was unenforceable.[3] According to Neighbors, the recorded plat unambiguously provided reasonable notice of the setback requirement and, even assuming the plat plan was ambiguous as to the setback requirement, the fact that the Town may have approved buildings within the subdivision that violated the setback requirement, whether intentional or not, was not persuasive evidence of the planning commission's intent when it approved the subdivision. For its part, Hannaford argues that the scant reference to setback lines on the general plan sheet of the plat was insufficient to establish an enforceable permit condition, as evidenced by the fact that no such setback limit has been enforced in the three decades since the subdivision was approved.

         ¶ 17. The applicable legal standard is well established: if the approved plat plan clearly includes the claimed seventy-five-foot setback, that setback is an enforceable condition. We have recently reiterated that, because the function of a subdivision permit is to approve plats of land, "recorded plats necessarily become subdivision permit conditions." Wagner & Guay Permit, 2016 VT 96, ¶ 13 (quotation omitted); see also In re Stowe Club Highlands, 164 Vt. 272, 276, 668 A.2d 1271, 1275 (1995) ("[A]lthough we will not recognize implied permit conditions as subdivision permits, recorded plats necessarily become subdivision permit conditions."). To be enforceable, subdivision permit conditions "must be specific enough to provide a landowner with notice that his or her property rights are fettered." Willowell, 2016 VT 12, ¶¶ 15, 18 (stating that "restrictions should be explicit to provide notice of all conditions imposed because [otherwise] 'subsequent purchasers would lack notice of all restrictions running with the property' " (quoting In re Kostenblatt, 161 Vt. 292, 298, 640 A.2d 39, 43 (1994))). "A violation of a condition of a subdivision permit would be a violation of the zoning ordinance itself." In re Robinson, 156 Vt. 199, 202, 591 A.2d 61, 62 (1991).

         ¶ 18. In this case, the building setback on the approved and recorded subdivision plat is clear and unambiguous. The Hinesburg Planning Commission's final plat approval for the subdivision specifically incorporates by reference the plan prepared by Phelps Engineering, dated September 9, 1986. The legend prominently displayed on the title sheet of that approved plat plan indicates several types of lines, one of which represents "BUILDING SETBACK LIMITS." In the general approved plan, there is nothing unclear about the corresponding building setback line on lot 15. A scale of one inch for every 100 feet is indicated on the general plan sheet of the plat. Measured to scale, the setback limit from the canal indicated on the general plan sheet is seventy-five feet.[4]The plat plan and subdivision approval were recorded in the town clerk's office.

         ¶ 19. The above undisputed facts demonstrate the existence of subdivision setback limits explicit enough to provide clear notice of an enforceable condition, notwithstanding the various claimed bases for finding ambiguity. The fact that the general plat plan relies on the clear setback lines and the notated scale of the plat plan, rather than explicitly noting that the distance between the canal and the setback line is seventy-five feet, does not negate that clarity. There is no dispute that the approved plat plan, measured to scale, depicts a seventy-five-foot setback from the canal. Nor is there ambiguity because the building setback limits are not reproduced in the more detailed pages of the plat plan depicting septic and stormwater plans; in contrast to the general plan depicted in the approved plat, those pages are focused narrowly on the septic and stormwater issues.

         ¶ 20. Likewise, the fact that buildings in the subdivision have been built within the setback limits depicted in the recorded plat plan does not change the fact that the plat plan as approved explicitly establishes the setbacks. For one thing, we have no occasion to consider this extrinsic evidence where the requirements of the approved plat plan are clear and unambiguous. Cf. Wagner & Guay Permit, 2016 VT 96, ¶¶ 11, 13 (noting that permit condition in approved plat plan is reviewed "according to normal rules of statutory construction" and considering extrinsic evidence in construing ambiguous notation on plat plan). Moreover, the parties stipulated that the permits for those other buildings were unchallenged, and there was no evidence, other than the fact that some buildings were built within the setback limits, that the Town considered the setback limits to be unenforceable.

         ¶ 21. Hannaford's reliance on Willowell is unavailing. That case concerned two undefined phrases used on the subdivision plat plan-"Agricultural Reserve" and "Building Envelope." The neighbors opposing the proposed project argued that the phrases were sufficiently explicit to impose conditions setting aside land for agricultural use and restricting new buildings to certain areas. We upheld the Environmental Division's conclusion that the two two-word phrases, in the absence of any definitions conveying the meaning the parties sought to ascribe to those phrases, were too ambiguous to impose enforceable permit conditions. Willowell, 2016 VT 12, ¶¶ 19-20. In contrast, the significance of the line demarcating a "building setback" in this case requires no further elucidation; the meaning of "building setback" is well understood. See, e.g., Setback, Black's Law Dictionary (10th ed. 2014) (defining "setback" as "[t]he minimum amount of space required between a lot line and a building line"). Accordingly, we reverse the Environmental Division's conclusion that the setback limit was not an enforceable condition.

         ¶ 22. Given that the setback requirement in the master subdivision permit is enforceable, no party disputes that the proposed site plan violates the condition. The trial court found that at their closest points, the edge of the building will be about sixty-five feet from the canal and that the overhang of the roof will measure about forty-two feet from the edge of the canal. No party challenges this finding. Thus, we reverse the court's issuance of the site plan permit.

         C. Front Yard Parking

         ¶ 23. Notwithstanding our reversal of the site-plan approval on the setback issue, we address the front-yard-parking issue because, unlike the other issues in the site-plan appeal, [5] it is likely to reoccur in the context of a new application for site-plan approval, regardless of whether Hannaford amends its site plan or obtains a setback amendment. See In re Taft Corners Assocs., Inc., 160 Vt. 583, 593, 632 A.2d 649, 654-55 (1993) (in interest of judicial economy, court may reach issues likely to occur on remand). Although we are not actually remanding the site plan matter, it would not make sense to force Hannaford to redesign its project in connection with a new application for site plan approval, if it chooses to do so, with continued uncertainty as to the effect of the front-yard restriction on parking.

         ¶ 24. Neighbors argued below that the parking proposed in Hannaford's site-plan application violates the Town's zoning regulations limiting "front yard" parking. The trial court determined that the applicable regulations do not prohibit the parking proposed in the site plan based on its conclusion that, pursuant to the definitions in those regulations, the front yard of the proposed project is the side of the building facing roughly south parallel to Mechanicsville Road. We uphold the trial court's determination for the reasons stated below.

         ¶ 25. The zoning regulations require the DRB "to take into consideration" standards specified therein, including conformance with § 5.6 of the regulations, "where [it] applies." Town of Hinesburg Zoning Regulations, § 4.34(9). Section 5.6.3 of the ...


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