In re Stowe Highlands
Merger/Subdivision Application, 2013 VT
4.
Isn’t it a shame?
Here we are in the 21st century with the whole of history at our
fingertips. A few key strokes on You
Tube and we can watch the I Have a Dream Speech
while over on some blog we can read an in-depth discussion of each episode of
the Jerry Van Dyke series, My Mother, the
Car. Yet, none of this absolute
stream of information can take the place of the thrill that once came from a
mixture of anticipation, rumor, and not knowing whether the good guy or the stooge
would win in the end.
I am talking of course about watching the Harlem Globetrotters
trounce the Washington Generals. For a
kid who was lucky enough to get seats at the Richfield Coliseum
to watch Meadowlark Lemmon and his crew clown around and over the Hapless Washington
Generals, what could ever compare with sitting in the stands, thinking . . . Is this the night? Will the Globetrotters pull it out? Could
the Generals win? Tonight?
The thrill was in the what
if. Sure the Globetrotters won every
time, but there was always that chance that
you could be watching history, watching the patsy win. Well, that was enough to knock you out of
your seat even if you wanted the Globetrotters to win more than anything
else.
Fortunately for Vermont legal observers, we have our own
Generals to watch and for the past twenty years they have provided us with same
type of hapless hijinks that mark their basketball cousins.
I am talking of course about Stowe Club Highlands. If you do not know the name, then you have
not been following Vermont land use law or SCOV cases for at least a generation. Since 1995, Stowe Club Highlands has been the
subject of no less than five different appeals to the SCOV and countless hours
before local zoning and Act 250 Commissions.
They have run the gamut of Environmental Boards, Environmental Courts,
and Environmental hearings.
But let’s not let myth obscure the facts. The story of Stowe Club Highlands begins with
a Planned Unit Development in the late 1980s.
Originally, the proposal called for development of 55 housing units/lots
and a 34-acre, 100-room hotel/conference center development. Not long after gaining approval for this
project, the Developers changed their plans, reduced the hotel to a 21-room “Inn”
on 17 acres. From here, the cases track
the Developers’ increasingly creative attempts to further reduce and divide the
hotel lot away into nothingness.
Along the way, the Developers unwittingly helped created the
Stowe Club Highlands Analysis, which acts as a significant hurdle for any
developer seeking to modify the conditions and terms of an Act 250 permit after
it is issued.
In large part, though, the history of Stowe Club Highlands
is one of failure. In case after case
and appeal after appeal, the courts and boards of this state have shot down one
proposal to modify the development after the other. In fact, the most famous test to determine if
a permitee can modify the conditions and terms of a permit carries the name
Stowe Club Highlands Analysis, which the Developers unwittingly helped created
by asking, perhaps too much of an Environmental Board in the face existing
permit conditions.
Under this SCHA test, a permitee may seek and obtain relief
from a permit condition or term if she can show “(a) changes in factual or
regulatory circumstances beyond the control of a permittee; (b) changes in the
construction or operation of the permittee’s project, not reasonably foreseeable
at the time the permit was issued; or (c) changes in technology.” As you might expect, many apply, few
establish that the necessary changes have occurred. In fact, Stowe Club Highlands has yet to pass
the Stowe Club Highlands Analysis and does not look to do so in the near
future.
But every dog has his day, and today, Vermont’s Washington
General’s get theirs, even if it is a low key approval of a minor modification.
In today’s case, the Stowe Club Highlands Developers sought
to reduce the hotel lot from 17 to 12 acres and merge the remaining five acres
among three other lots that it would then subdivide into 11 building lots. Basically, it is a land swap—shrinking the
hotel lot to bulk up the surrounding lots that are then divided into
residential property that will sell without any further investment.
At the local Development Review Board level, this plan was
quickly deemed to be a change to the conditions and terms of the permit. As a Resort Planned Unit Development, the
Developers could not remove or alter their obligation to build a resort and the
land at issue was dedicated to that purpose. For the DRB, this issue had already been definitively
answered by the SCOV one or two appeals ago.
Developers, at a minimum, will have to build a resort on the land. A Stowe Club Highlands analysis followed, and
the DRB rejected the application.
Undaunted, the Developers appealed to the Environmental
Division of Superior Court. There, they
found a more sympathetic ear. The
Environmental Court ruled that the alteration did not affect the footprint of
the 21-room hotel and that the original permit did not require or condition
that the entire hotel lot to be dedicated to the hotel. Since the alteration did not modify the
Developers’ primary obligation to set aside sufficient land and construct a
21-room hotel, the modification did not involve a term or condition of the
permit and should be allowed to the extent that it complies with the Town’s
current zoning bylaws and criteria.
On appeal to the SCOV, the Town and the Neighbors are unable
to overturn the Environmental Court’s ruling.
The interested parties’ position was that while the permit did not
explicitly require all of the property be dedicated to the hotel, it was
implied. Furthermore, the plats and maps
filed with the Town for the original permits show the land dedicated as one
hotel lot. This, argued the Town and
neighbors, created an implied term.
The SCOV disagrees and notes that there is no express
condition for the lot in the permit. In
a brief analysis, the SCOV notes that the case law strongly limits what the
courts will consider a binding zoning permit to be. This should come as no surprise to land use
practitioners as both the SCOV and the Environmental Court have been slowly
tightening the standard for what will be considered a permit condition to which
the SCHA applies.
In light of this and other decisions, the standard emerging
is that unless a proposal contradicts an explicit and necessary condition on
the existing permit, then there is no violation and the application may proceed
under the lower scrutiny of a permit amendment.
In that case the basic question is whether or not it complies with the
zoning regulations. Just as the
developer almost always loses in a SCHA, they almost always prevail under a
straight application of the bylaws.
Not surprisingly, the SCOV affirms the Environmental Court in
today’s case, noting that nothing in the filings precluded additional development
on the site or the modification of lots so long as the intended hotel lots
remainder and were sufficient for the proposed hotel project.
With that the SCOV gives the Generals their first win of the
decade, if not the century. More importantly,
the SCOV gives the Developers some slack on the largest remaining parcel of
land (anyone want to guess that the eventual hotel lot will be even smaller?).
Looks like the Interested Parties Globetrotters will have to
do some soul searching in the locker-room at halftime.
Comments
Post a Comment