2017 VT 16
By Elizabeth Kruska
I am a sports fan. I like some sports better than others, of course, but I think I can safely say I generally “like sports.” I don’t especially like the post-game interview, though. You know, the one where someone who works for a television network goes over to the winning coach or player, and asks completely ridiculous, unanswerable questions. They’re always along the lines of, “how special is it for you that you’ve won the Big Game?” As if the player or coach is going to say, “meh, this wasn’t that big a deal.” Instead, the answer is always a Grandpa Simpson-style rambling non-answer like, “I just want to give a shout out to my teammates about how we overcame adversity and stuck together to win this game.” That is not an answer to the question, and quite frankly, doesn’t answer any question anyone asked ever.
That’s maybe a little bit like what happened in this case. Atwood Enterprises, Inc. (Atwood) acquired 28 acres of land in Jericho where they planned to build a housing planned unit development (PUD). In order to do this, of course, Atwood needed to get a permit from the local board, and before they did that they had to provide appropriate notice to the surrounding landowners. The neighbors learned about the permit and showed up at the meeting to voice concerns and objections. The local Development Review Board took the neighbors’ concerns into consideration and ultimately gave the green light to Atwood to start the building.
Neighbors (there are several, and it’s easier to call them “Neighbors”) appealed the DRB’s finding to the Environmental Division. When an opposing party appeals to the Environmental Division, the party has to sent a Statement of Questions and this creates the framework for any future evidentiary hearing. Neighbors asked an incredibly broad 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?”
This is where I’d expect the winning coach to say, “we overcame adversity to pull through as a team and make the key plays when it mattered.” It has nothing to do with the question asked. Sensing this was a possibility, the Environmental Division told Neighbors they needed to sharpen their question into something more easily answerable. Although the original question was elegant in its simplicity, it was far too broad. Probably the Town of Jericho has lots of land use and development regulations, and it wouldn’t be a good use of anyone’s time and resources to try to show how the PUD satisfied every single requirement if there were some that weren’t in question.
So, Neighbors broke down their issue into four sub-parts, all of which were still pretty broad. Atwood could have sought clarification, but apparently didn’t do that.
The parties headed into trial and for two days, elicited evidence that was fairly broad and wide-reaching. There were times when Atwood’s attorney objected to certain questions because they covered probably more ground than anyone expected. But since it could be fit into one of the sub-parts of a question, the court took the answers. Afterward, the parties filed proposed findings of fact. Neighbors’ proposed findings touched on seven general categories.
The Environmental Court issued a written decision several months later, and in doing so, excluded some of the seven categories in the proposed findings because those were not included in the Amended Questions. The court’s rationale was that Atwood would not have had adequate notice about some of those issues prior to trial, since they were not specifically set forth in the amended questions. The court found that Neighbors had adequate notice. The court also found that Atwood’s plan complied with Jericho’s rules and approved the permit. The court found that the PUD fit in with the comprehensive town plan, even though there wasn’t a lot of evidence about this particular point.
Neighbors appeal to SCOV, which affirms in part and reverses in part.
First, Neighbors appealed the part about how the Environmental Court made them amend their question. SCOV says this was okay to do. When a party appeals from a DRB, they have to appeal a particular question or question, and that’s what shapes the appeal and evidentiary hearing. The Environmental Court interpreted its procedural rule to say that it could ask Neighbors to clarify their question. The point of submitting the question in the first place is so that everyone involved—the parties and the court—know what the question is and what the evidence will concern.
SCOV points out that the intent of the legislature in creating the rules was to create a situation where the court knows what’s coming before it, and allows the court to narrow the issues. Neighbors could have appealed every aspect of Atwood’s project, but they’d need to be very clear in their appeal questions that that’s what they were doing.
SCOV does say, though, that once Neighbors filed their Amended Questions, that the Environmental Court was obligated to resolve the issues raised by those questions.
The second question was broad and asked whether the planned subdivision met the requirements applicable to planned unit developments. This is really wide, because planned unit developments have their own set of rules. Neighbors sought findings of facts about certain particular pieces of planned unit development rules, and this is what the court cut short saying it wasn’t included. That’s like asking a baker to tell you the procedure for making a wedding cake, but then not letting her tell you how she made the icing, even though she makes the icing and it’s included as part of the cake.
SCOV disagrees with the Environmental Court for a couple reasons. First, since the question was so broad, it left a huge array of issues open. Atwood defended the broad question by presenting evidence on a wide range of subjects, including specific points in the planned unit development rules. Neighbors asked really broad questions, and when Atwood objected, the court allowed the subjects to go forward because the original Amended Questions were so broad. Second, the court construes the rule in favor of the party exercising its appeal rights. Neighbors raised certain questions in their Amended Questions, and it was their right to have the issues addressed. SCOV reverses this piece and sends it back to the Environmental Court, recognizing that there may need to be more evidence taken in order to answer adequately the questions. But, SCOV also notes there’s already been a lot of evidence and testimony, so any new evidence needs to cover ground not already covered. Also, the Environmental Court would be within its power to ask Neighbors to hone their questions a little more.
Finally, Neighbors appeal regarding notice of the initial hearing. As part of its DRB hearing notice requirement, Atwood tacked a notice to a tree on a road adjacent to the project, although it wasn’t the nearest road. Many people showed up.
SCOV reviews notice de novo, or anew, and says the notice was fine. The rule says the notice has to be provided in three ways. First, in the paper. Second, posted in three or more public places, including being posted within view of the public right-of-way closest to the project. Third, it has to be given in writing to all adjacent landowners. The statute also says that a defect to these forms of notice does not invalidate the notice if there were reasonable efforts made to provide adequate notice.
SCOV points out that lots of neighbors showed up to the DRB hearing and participated in it. Nobody disputed that the notice went into the paper and also was given directly to landowners. The dispute was about the notice tacked to the tree. Since people had notice and showed up and were heard, the notice achieved its actual goal: notice.