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| If I practiced environmental law, I'd probably bring Tonka toys into court as demonstratives . . . and get in trouble. |
By Andrew Delaney
This is a long opinion about law I don’t practice and know very little about. There are some pictures in the published version, but they don’t help me much. You get what you pay for. Anyway, if I butcher this, that’s why.
Hannaford wanted to build a big ol’ grocery store and pharmacy in Hinesburg. There was an application and hearings before the town development review board finally issued a permit with conditions. Some neighbors appealed that to the environmental division and Hannaford cross-appealed.
Hannaford also filed its Act 250 application, seeking approval under all criteria except the water-supply criterion because Hinesburg was in the process of upgrading its municipal well system and didn’t have the capacity to support the project at the time of application. The District Commission concluded the project was up to snuff. Neighbors appealed this decision to the environmental division too.
\The environmental division coordinated the appeals, decided a bunch of pretrial motions, did a site visit, and held a real, live trial. It issued 83 pages of decisions (one 23-page and one 60-page decision). In response to some post-trial motions, it amended the Act 250 but not the site-plan decisions.
Neighbors appeal! Hannaford cross-appeals! The Town cross-appeals! Everyone appeals! (You must imagine this paragraph in Oprah’s voice or it won’t be as funny as it is in my head).
SCOV consolidates the appeals and we’re off to the races. I’m not going to list the issues because we’re going to cover the ones that matter anyway. Briefly stated, the neighbors take issue with several of the trial court’s conclusions; Hannaford and the Town don’t want to put in a traffic signal. The Town also challenges the trial court’s decision to eliminate a post-development-traffic-study requirement on reconsideration. And for some reason, the Natural Resources Board (NRB) pops in to advocate for upholding the traffic-signal condition.
SCOV’s standard of review is straightforward. Factual findings get deference unless clearly erroneous. Legal conclusions get upheld if reasonably supported by the findings.
There’s a dispute about whether the environmental division’s interpretation of town zoning ordinances get factual-finding or conclusion-of-law deference. SCOV says it doesn’t matter because the result would be the same either way.
Neighbors argue that the trial court ignored setback requirements it should have enforced. SCOV agrees. It concludes that the trial court messed up when it concluded that the subdivision setbacks weren’t enforceable. There was a recorded plat and the setbacks were included. And the legal standard is met if the subdivision setbacks are recorded in the land records. SCOV notes: “In this case, the building setback on the approved and recorded subdivision plat is clear and unambiguous.”
SCOV reasons that the subdivision setback limits are “explicit enough to provide clear notice of an enforceable condition, notwithstanding the various claimed bases for finding ambiguity.”
It doesn’t matter that some stuff may have been built within the setback limits at some point—that doesn’t mean the town considered the setback limits to be unenforceable.
Because SCOV concludes that the setback requirement in the master subdivision permit is enforceable, SCOV reverses the site-plan approval.
But there’s some stuff that still needs to get addressed, even with the reversal, like the front-yard-parking issue. That’s because it’s likely to crop up in any new application for site-plan approval and judicial economy dictates a “might as well deal with it while it’s here” approach.
Neighbors essentially argue that the parking proposed in the site-plan application violates the town's zoning regulations limiting “front yard” parking. In response, the trial court found that the project’s “front yard” was off to the side of the building.
SCOV upholds the trial court on this point. It reasons that the purpose of the front-yard parking regulations are to encourage street-facing storefronts, with parking in the back. There’s nothing in the text of the regulations that says a “front yard” can only be in one spot. Here, the trial court was within its discretion in concluding that the proposed project didn’t run afoul of the front-yard parking regs.
We now get to the Act 250 appeal. So if you thought the site-plan-appeal summary was bad, it’s about to get a whole lot worse.
Neighbors argue that the term “small scale” in the Act 250 master subdivision permit knocks out the proposed project. The environmental division reasoned that the reference to small-scale businesses in the master permit was “a generalized aspirational goal that by its terms is not a prerequisite for development.”
SCOV reasons that even if the general project description in the approved project narrative is an enforceable part of the permit condition, we’re still within the parameters. For one, the permit qualifies “small scale” with “primarily.” And this project is on the biggest lot in the subdivision by far.
“Small scale” isn’t defined anywhere. But there are more specific and objective criteria: parking spaces, gallons per day of water and wastewater, daily and peak-hour vehicle trips, and electricity usage. SCOV infers that these more-specific limitations are the way the District Commission intended to regulate the scale of development in the subdivision.
And so, SCOV reasons that “small scale” does not negate Hannaford’s use here.
Similarly, SCOV rejects neighbor’s argument that the proposed project would materially jeopardize or interfere with the public’s use or enjoyment of a canal path.
The town invested some money in the path in the past. The trial court reasoned that the project wouldn’t interfere with public access or increase maintenance costs. It rejected the neighbors’ an-open-field-is-better-than-the-side-of-a-building pitch, mostly due to the path being in a commercial zone and that development was likely—and any investment in the path was made with that eventuality in mind. Also, the project proposes a bunch of screening and landscaping along the path so the project will be compatible with its surroundings.
SCOV affirms. SCOV acknowledges that foreseeability per se isn’t a component of the analysis under the applicable criterion, but reasons that the court still addressed the materiality of the alleged interference with the public’s use and enjoyment of the path. The trial court considered the context of the public investment—a paved walkway on an easement along a commercial development and a former industrial canal. The court didn’t screw up in doing so.
SCOV reasons that the canal path is “near the fringes of a ‘Commercial Industrial Park’ with existing and planned commercial development” and that’s a significant fact that plays into the appropriate analysis. The trial court’s decision on this point is supported.
In contrast, the trial court’s decision on how the proposed stormwater grass swale would function is not supported. The trial court relied on assumptions it ought not have. For example, the trial court assumed the proposed swale was in compliance with ANR regs when it was not. Neighbors’ expert testified that the proposed swale wasn’t going to work right for specific reasons, such as saturation, perennial wetness, and populated by wetlands vegetation. And Hannaford’s expert didn’t really testify that it would work right. He said something along the lines of he “thought” the proposed swale would comply with ANR regs.
The court’s reliance on Hannaford’s conclusory representations was error. A trial court needs to make affirmative findings under all statutory criteria before issuing a permit.
So this gets sent back to the trial court to make findings and conclusions on the proposed swale, assuming Hannaford doesn’t submit a revised stormwater design.
We now get to the cross-appeal traffic issues. SCOV agrees with Hannaford and the Town that a traffic signal isn’t required. There is a lot of ink on this issue. But the bottom line is this: SCOV reasons that the court’s condition requiring the installation of a traffic signal is not supported by the evidence. The neighbors’ expert’s testimony doesn’t support a traffic light requirement and the neighbors didn’t offer sufficient evidence that the condition was reasonable (in the sense that it was likely attainable). If the signal isn’t attainable, “then the condition would operate as an insurmountable obstacle to the project, in violation of the Legislature's direction that Act 250 permits not be denied on the basis of [traffic impact criterion].” See, the Town and VTrans never agreed to install a traffic light and they don’t really want to—that doesn’t help neighbors with their traffic-light-is-necessary argument.
So this piece gets remanded for further proceedings concerning traffic mitigation. SCOV notes that to the extent any party advocates for a traffic signal or roundabout construction as reasonable mitigation, that party should probably join VTrans as a necessary party.
Likewise, SCOV remands the issues surrounding the trial court’s elimination of a post-approval traffic study requirement. SCOV reasons that the trial court should consider the town’s arguments in this regard.
SCOV reasons that the trial court exceeded its discretion in striking the traffic-study condition. First, in striking the condition, the court relied on the same predictive-model evidence that led it to impose the condition in the first place, but didn’t explain why the post-project monitoring was no longer necessary. Also, everybody had agreed to some form of a post-development study, so the trial court’s removal of the condition was kind of a maverick move.
SCOV reasons that the town at least should get its chance to present its arguments.
SCOV adds some words of caution to the town, however, noting “that the all-encompassing study proposed by the Town, which would allow the District Commission to reopen the docket depending on the results of the post-permit traffic study, would directly violate our recent decision in Treetop.” SCOV reasons that this kind of condition—one that would allow reopening at a whim essentially—isn’t okay, but a post-development study, limited in scope, is. Back to the trial court it goes.
If you’re still with us, this one’s a reversed-in-part, affirmed-in-part, and remanded opinion. It’s probably a good thing I don’t practice environmental law. Send any angry notes to my co-editor.
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