Saturday, February 27, 2016

Recondite Resolution

In re Willowell Found., 2016 VT 12

By Andrew Delaney

Yes, I used a thesaurus for the title. "Recondite" means "mysterious or obscure." It’s as close as I could get to "missing" and keep up my penchant for alliteration in titles. Don’t say we never teach you anything here. On to the story . . . .

So, somebody gets a permit and that makes the neighbors angry. That’s new, right?

The Willowell Foundation got a conditional-use permit “to build a community center and related improvements” on its 230ish-acre plot in Monkton. The plot is subject to Monkton’s Unified Planning Document (UPD), which combines the town’s zoning and subdivision regs. The plot is part of a subdivision, but apparently the approval resolution for the subdivision has disappeared, never to be seen again. At any rate, the plat outlines a “building envelope” on each lot. On Willowell’s plot, there’s an “agricultural reserve” that doesn’t appear to overlap with the “building envelope,” although the “building envelope” doesn’t appear to connect in at least one place—so it’s not a closed shape.

Willowell wants to put in “offices, a preschool with two classrooms, an art gallery, a multipurpose room, a library that incorporates an existing silo, a teaching kitchen, a farm stand, a garden, a farm-manager house, a relocated and rebuilt partially existing barn, a goat shed, two hoop houses, a widened existing access road, and a parking area.” Quite a bit of it is outside the building envelope. The farm-manager house, garden, septic system, and other infrastructure land in the “agricultural reserve.”

Since 2005, Willowell “has used the project site three days per week to run the Walden Project, an alternative outdoor education program for high school students.” It also runs small ag and education programs on the site. It plans to do similar things in the proposed community center.

The UPD lists permitted and conditional uses for the development district where Willowell’s plot is located. Some of the proposed use falls into the permitted categories; some falls into conditional-use categories. So, Willowell applied for a conditional-use permit. The Development Review Board (DRB) is allowed to issue a conditional-use permit under the UPD “when in the opinion of the DRB the proposed use does not detract from the traditional rural agricultural character of the town, and is compatible with other uses.”

So the DRB issued a permit with some conditions. One later-dismissed party appealed to the Environmental Division. The neighbors (the appellants in this appeal)  joined the fun at the Environmental Division.

“The Environmental Division upheld the DRB’s conditional-use and site-plan approval” but booted all but one condition and required new modifications to the project. The Environmental Division’s decision required Willowell to file a revised site plan with the zoning administrator. The zoning administrator was then supposed to issue a permit consistently with the court’s decision.

The SCOV notes that though there was a smorgasbord of issues raised below, there are only four issues neighbors raise on appeal: (1) whether Willowell’s permit doesn’t fly for lack of certain state permits with its application; (2) whether “agricultural reserve” and “building envelope” restrict land use, and if so, whether the proposed project is compliant; (3) whether the Environmental Division screwed up by not allowing extrinsic evidence to explain the subdivision conditions; and (4) whether the Environmental Division screwed up when it directed “the zoning administrator to issue a zoning permit upon receipt of a revised site plan.”

The SCOV disposes of the lack-of-state permits issue in a very short paragraph—not raised in the Environmental division, so neighbors waived that argument, and SCOV-y don’t play that.

On the “agricultural reserve” and “building envelope” terms, the SCOV takes a little more time. The proposed project has to jibe with the UPD and any applicable subdivision regulations. Though there’s a reference to a resolution and whatever “requirements and conditions” are contained in the resolution, the resolution has vanished.

Neighbors take the position that “agricultural reserve” and “building envelope” restrict land use. In particular, neighbors argue that “agricultural reserve” means, more or less, farmin’ only, and that “building envelope” means no building outside that envelope.

Willowell takes the position that there’s no resolution or defining of the terms, so its use doesn’t—or rather can’t—violate those terms “because land-use restrictions should be construed narrowly in favor of the landowner,” and any ambiguity should go in its favor.

The Environmental Division went with Willowell on this issue, reasoning that no existing document defined the phrases and so no permit conditions existed. The SCOV agrees and holds “that the terms appearing on the subdivision plat are not enforceable land-use restrictions.”

While review of the Environmental Division’s legal conclusions is de novo, the SCOV will uphold those conclusions if reasonably supported by the findings. I guess we can call this “semi-deferential review.” Conditional-use determinations are upheld unless clearly erroneous.

The SCOV’s reasoning boils down to the missing resolution. Without something to back up the “agricultural reserve” and “building envelope” phrases in the plan—like the missing resolution—the only conditions on use are those in the UPD.

“Even if the purported subdivision conditions are appropriately before this Court, however, the two-word labels on the plat are not sufficiently clear to constitute land-use restrictions.” Restrictions must be explicit enough to provide notice because otherwise, subsequent purchasers would have no idea what they’re buying. “Willowell had no clear notice the two-word descriptions on the plat imposed enforceable conditions.”

In other words, there can’t be conditions imposed based on ambiguous language. People buying properties need to have notice that there are restrictions on that property. Without more, phrases like “agricultural reserve” and “building envelope” don’t provide that notice. Accordingly, the SCOV concludes that the Environmental Division was correct in concluding that the only restrictions on use under these facts are the restrictions in the UPD.

The SCOV next turns to the refusal to admit extrinsic evidence. The Environmental Division excluded testimony that neighbors argue “pointed towards the subdivision developers’ intent” and would’ve helped define “agricultural reserve” as that term was discussed at the subdivision-approval meeting. Because the testimony referenced the vanished resolution, the Environmental Division excluded it as irrelevant.

Though the SCOV acknowledges that the exclusion of the evidence on relevance grounds was a mistake, it concludes “that the evidence's admission would not affect the result of this case.”

The SCOV opines that the evidentiary issue here is not relevance but ambiguity. Although it reviews an evidentiary ruling for abuse of discretion, ambiguity of a document is de novo. Here the SCOV notes the competing interpretations of the “agricultural reserve” and “building envelope” phrases, and notes that in the presence of ambiguity in a document, extrinsic evidence is appropriate. Under the circumstances, the Environmental Division should’ve admitted the relevant evidence.

But—and here’s where the SCOV proves a point I often make with my colleagues—there’s “no indication that the improper exclusion of the evidence affected a substantial right of the party.” The point I often make with my colleagues is this: evidentiary rulings are very rarely used to overturn a judgment. This isn’t to say it’s not important to make a good record, but evidentiary errors rarely carry the day.

The SCOV opines that even if the testimony indicated that the terms were intended to mean what neighbors say they mean, there’s no evidence that the intent transferred to the missing resolution. So, there’s a connection missing and the SCOV concludes that the inclusion of the evidence wouldn’t affect the outcome of the case.

Finally, the SCOV deals with the neighbors’ claim “that the Environmental Division improperly required the zoning administrator to issue a zoning permit upon receipt of a revised site plan.” Neighbors argue that the order forces the zoning administrator to issue a permit even if the revised plan is noncompliant with the UPD or the subdivision-approval permit. Willowell argues that the neighbors are just trying to reargue the lost subdivision resolution and that an order doesn’t need to state every potentially applicable zoning requirement to be effective. “The Environmental Division found that a zoning administrator's role is ministerial and reiterated that Willowell must meet all the UPD requirements, even if the conditions were not contained in the order.”

The SCOV agrees. Issuing a zoning permit is a ministerial act, so if “Willowell's revised site plan satisfies the court's order as well as the UPD requirements,” the zoning administrator has to issue the permit. There’s no discretion involved. The SCOV further notes that the Environmental Division’s order doesn’t waive any additional or necessary zoning conditions imposed by the UPD.

To recap, the SCOV concludes that: (1) the failure-to-include-state-permits claim was waived; (2) the “agricultural reserve” and “building envelope” are not enforceable land-use restrictions; (3) the extrinsic evidence should’ve come in but “no blood, no foul”; and (4) the Environmental Division’s direction to the zoning administrator was all good.


  1. If the extrinsic evidence would not have changed the result, then wasn't the lower court correct to exclude it?

  2. Not necessarily. The SCOV is saying that this is the type of evidence that should be considered, but in this case, it doesn't rise to the level of changing the outcome. I realize how convoluted that sounds.

    There's an old saying I remember from evidence that goes something like, "One brick does not a wall make." Basically, the SCOV is saying that the extrinsic evidence is a legit brick but it doesn't make a wall.