In re Woodstock
Community Trust and Housing Vermont PRD, 2012 VT
87.
There ought to be a name for this kind of case because its
type is common event in land use law.
Calling it BANANA-NIMBY
as one contributor has suggested may capture some of the feeling, but it does a
disservice to both sides and to the totally committed nature of the litigation. Appeals of this ilk are not simply protective
actions by a neighbor trying to protect her view or a favored open field. It is a primal scream that expresses outrage
across the spectrum. It says that this
project not only offends me, it offends the Town, our community, the land use
laws of this state, the zoning practices of the past fifty years, private
property boundaries, and the common decency we expect in Vermont.
In short, an appeal like this one is absoluter kreig. Neighbors opposing the development at the
heart of today’s appeal have filed multiple lawsuits, attended countless zoning
meetings, have retained a cadre of expert witnesses, and have likely spent more
hours trying to stop this project than you can imagine. In this respect, NIMBY or like terms are not
accurate. These neighbors have looked at
the proposed development and have come to believe that something foul lies at its
heart, and they have pledged time and fortune to see that it does not come to
pass.
That is an amazing feature of land use law. People will spend tens of thousands of
dollars for the status quo—not to gain anything, just simply not to lose what
exist.
In this respect today’s case cannot accurately capture the
details and nuance of such a proposal or its alleged flaws that have driven the
neighbors. Such nuances would likely be
apparent only to the individuals involved or to someone with time enough to
read the decisions and transcripts of the multiple civil lawsuits and
environmental court appeals that these parties have taken.
For now, let us, like the developer, be satisfied with a
limited pallatte of facts and the legal issues immediately at hand.
Applicant sought zoning and Act 250 approval for a
multi-unit project in West Woodstock.
Neighbors opposed them. The
Woodstock DRB first granted Applicants zoning approval in 2007. Neighbors appealed, and the environmental
division of the trial court reversed the DRB and denied the permit on four
grounds.
Undeterred, Applicant made changes to its application and
resubmitted to the DRB for zoning approval and to the District 3 Commission for
Act 250 approval. Both bodies approved
the application, and Neighbors appealed to the trial court, which affirmed the
permits.
This led to the present appeal on five various issues. The decision takes them one at a time
starting with the zoning permit.
The first issue for the Neighbors is the successive-application
doctrine. Because Applicant had
previously applied and was denied a permit, it must now show a substantial
change in conditions justifying the second application. Substantial change can come in three forms: Facts
on the ground have changed (think post-Irene alterations to the landscape); the
application has changed; or the law has changed.
This is an important difference between land-use litigation
and other forms of litigation. When you lose
your personal injury case that is it.
You cannot wake up three months after the trial with a new argument and
seek to reopen your claim. It is done
and over. Short of finding new evidence
(and not simply evidence you didn’t find the first time), you can never revisit
issues that have already been litigated.
This is what is known as res judicata.
In zoning and land-use, though, the idea is to allow owners
to re-apply as plans and conditions change.
After all, zoning is not intended to block the use of land but simply
direct it toward acceptable and harmonious uses that correspond to the
community and its growth goals. Such
goals change over time as does the technology in development and the scope of
plans from the developer. In this sense,
the successive-application doctrine exists only to block forum or panel shopping
and prevent a landowner from reapplying for the same permit, time and time
again.
Neighbor’s primary argument against Applicant in this area
attempts to tighten the successive-applicant doctrine by adding the provision
that an applicant cannot reapply for a permit with corrective information that
he or she could have supplied in the first application. In this case, part of the reason Applicant
was rejected the first time was because its stormwater plan was
incomplete. Neighbors argue that it
could have been complete, and therefore, the Applicant is barred from
re-applying.
The SCOV rejects this argument. It notes that this is what separates the
successive-application doctrine from res judicata. If an application is rejected for being
incomplete, vague, or for creating specific problems, the doctrine allows the
applicant to alter, add, and fix the application and to immediately
reapply. The SCOV notes that in doing
so, the applicant is being responsive to the decisions and direction of the
land use boards and should be allowed to implement the altered application. Anything more would be a limitation without a
purpose.
This leads to the Neighbors’ next argument in this category:
Applicant did not change its application enough to constitute a substantial
change from the prior application. On
this point, the Neighbors noted that the Applicant’s architect described the
zoning changes as “subtle,” which the Neighbors believe is a synonym for minor
and insubstantial.
Not so rules the SCOV.
You must look at the application, and in this case, the Applicant may
have made “subtle” changes, but they were critical changes that altered the
application substantially. In the case
of each basis that the trial court cited during the first appeal for denying
the application, the Applicant made changes to remove or address the sources of
the trial court’s earlier concerns. As a
result, the SCOV rules, the application, by its terms, represented substantial
change sufficient to trigger review and approval under the successive-application
doctrine.
The second set of arguments deals with the deficiencies of
the first application and the Applicant’s attempt to cure them in the successive
application.
The Neighbors object to the Applicant’s changes to the
parking. To avoid a wet area, the
Applicant moved the proposed parking from a single lot to a series of tandem driveways. Neighbors argue that because the driveways
are tandem (intended for two cars), they must be considered parking lots under
the zoning bylaws and are improperly undersized. The SCOV disagrees. In doing so, the SCOV looks to the specific
language of the Town’s bylaws and just does not see the same thing that
Neighbors do within the definitions.
So the decision moves to the next line of argument which
concerns the ownership and maintenance agreement for the common areas of the
development. This would seem like a
fertile area as Applicant’s previous gaps were sufficient to tank the project
in the last round. But this time, the
Applicant has met the standard. It is
important to note the difference here, which Neighbors seem to push too
far.
First the Neighbors seek a narrow interpretation of the
zoning bylaw that would reject the application based on the nature of the
ownership that Applicant proposes for the individual units and common area. The SCOV rejects this reading as too narrow
and unsupported by the regulation as a whole which is only intended to require
that applicants with common area projects provide some proof of how the areas
are to be owned, controlled, and maintained.
Second, the Neighbors argue that the project violates the
Vermont Common Interest Ownership Act.
This argument was raised for the first time on appeal. So the SCOV considers it waived. Nevertheless, the SCOV goes on to explain why
it does not apply.
Zoning has almost nothing to do with the Common Interest
Ownership Act. Zoning is not premised on
compliance with the Act, and the Town’s bylaws do not require it. But the larger problem is described in detail
in footnote six. The Act is essential a
private set of rights that are limited to developers, buyers, and homeowner
associations. It is neither relevant nor
proper for neighbors to raise these issues or to seek public repudiation based
on them.
From the tone of the SCOV’s opinion and from footnote six,
it would appear that this line of arguments may have hurt the Neighbors’
credibility by showing them to be total opponents to the project rather than
reasoned objectors who were seeking to raise legitimate concerns.
Moving to the next argument, the Neighbors object to the
stormwater plans arguing that they still violate the Town’s regulations. This objection, though, does not bear out in
the analysis. Between applications, the
Applicants sought and obtained a stormwater permit from the state for the site
based on well-documented changes to the development plans. The presumption that attaches to these
permits was not rebutted by the Neighbors at the various hearings, and the SCOV
affirms the trial court’s reliance on these permits.
The SCOV also rejects another line of arguments from the
Neighbors seeking to impose a zero-discharge increase standard from the zoning
bylaws. As the SCOV notes, there is no
such standard in the bylaws and if one was imposed, it would look not to the
specific discharge point but the overall flow of surface water from the
site. Without scientific evidence to the
contrary, the Neighbor’s position erodes.
The Neighbors final zoning argument concerns the Town’s
harmony and density requirement. Basically,
the Neighbors’ argument is that the project will bring in too many people and
will not fit in the character of the environment.
This leads the SCOV to quote the trial court’s lyrical
description of the project at length. It
is not precisely Wordsworth, but it does soar with a certain picturesque
quality that stands in contrast to a great deal of legal writing.
More importantly, this is enough to establish that the
project violates neither density nor harmony requirements and the Neighbor’s
position is tossed aside on poetic grounds.
Hang in there. We are
not quite done. The SCOV takes up the
Neighbor’s third appellate issue, the objections to the Applicant’s Act 250
permit. The Neighbors’ sole basis of
appeal in this category goes to Criterion 8, which is Aesthetics.
This means the SCOV has to pull out the Quechee Test. This test says that a project creates an
improper aesthetic impact if: 1) it creates a negative aesthetic impact and 2)
it is undue because it: (a) violates a clear, written community standard
intended to preserve the aesthetics or scenic, natural beauty of the area; or (b)
offends the sensibilities of the average person; and (c) lacks generally
available mitigating steps that a reasonable person would take to improve the
harmony of the proposed project with its surroundings.
As you might imagine, Criterion 8 is oft raised in Act 250
proceedings but rarely established.
Neighbors apparently attacked this with some gusto leading to another
footnote from the SCOV noting dryly that the Neighbors attempts to characterize
the project as “Disney-like” and “offensive” to the established homeowners was “greatly
exaggerated.” Pounding the point home,
the SCOV notes that this “and other similar mischaracterizations” did “not help
neighbors’ cause.”
Basically, there are only three solid ways to win an
aesthetic argument. First, you must have
a clear (and I mean clear) community standard to site. Think of opposing a skyscraper in a town with
a three-story height ban. Second, you
are opposing something that is completely and unquestionably ugly. The problem here is that you as neighbor are
probably the worst judge of this. Find
an architect, a planner, or similar expert who can use their professional
training to explain why the proposed strip mall on the far side of the Norwich
town green is an aesthetic offense. Third,
you have an expert who can show the project is at least somewhat offensive and
out-of-character for the neighborhood and
it could be accomplished in a much less offensive manner.
Here Neighbors, because of circumstances, were limited to
citing certain, general passages from the Town plan and trying to express their
strongly held disgust at the project.
Neither is clear or strong enough to meet the Quechee test, and the Act
250 permit is affirmed.
The Neighbor’s fourth appellate argument concerns the trial
court’s refusal to grant them a stay in this proceeding until the other
ancillary actions could be resolved. The
Neighbors argument is that the tangle of facts and cross-rights interfered with
each other and the trial court’s failure to grant a stay interfered with at
least one neighbor’s water rights as established in a separate proceeding.
This is the dilemma for the courts with total war
litigation. Neighbors want proceedings
stayed so that the cases will progress one at a time, which will allow the
issues to unpeel slowly. That is because
the longer the process takes, the greater the chance the applicant will walk
away. Of course, the argument, which has
some merit, is that too many cases at once will overtax the parties’ resources;
needlessly involve multiple issue litigation; and lead to decisions that may be
conflicting. On the other hand,
applicants want the process to go as cheap and fast as possible. They know that the longer the proceedings go,
the worse it will be. They also know
that they have the advantage at the outset.
They have the experts and plans, and they have taken the time to think
the project through. The neighbors
usually are struggling to organize, hire experts, and come to grips with the
fact that this opposition is going to cost a lot of money. With a couple of quick decisions awarding her
permit rights, the applicant knows that the neighbors will likely lose some
wind in their sails.
In light of these competing merits and strategic interests,
the SCOV notes that the discretion for a stay resides by and large with the
trial court. Here there is no basis to
question the trial court’s denial. No
great injustice, and so the SCOV affirms.
The fifth and final appellate argument concerns the Neighbors
objections to the trial court’s requirement for the Applicant to note the
location of a contested spring on its project maps along with notations about
its ultimate legal status. The Neighbors
contend that this is an improper allocation of private rights. The SCOV is less sanguine. This is just a labeling condition. It is not intended to adjudicate private
rights. It seeks to simply memorialize
them and record them into the record.
The trial court was well within its power to require such notation, and
the decision is affirmed.
That does it. The
permits are affirmed, and the Neighbors lose on all counts. Sometimes total war comes to total defeat. Ask Napoleon on way west. For the Applicants, though, this is only one
negative decision. It sounds as if there
are still miles to litigate before this thing is shovel ready.
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