Entry Regarding Motion Page 1 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

VERMONT SUPERIOR COURT 

Environmental Division Docket No. 115-10-19 Vtec

32 Cherry St, 2nd Floor, Suite 303, 

Burlington, VT 05401

802-951-1740 

www.vermontjudiciary.org 

Zins 2-Lot Subdivision Denial 

ENTRY REGARDING MOTION 

Title: Motion for Partial Summary Judgment 

Filer: David W. Rugh, attorney for the Town of Charlotte 

Filed Date: January 31, 2020 

Response in Opposition and Cross Motion for Partial Summary Judgment filed on February 28, 

2020, by Liam L. Murphy, attorney for Appellant Andrew Zins. 

Reply in Support of the Town’s Motion for Partial Summary Judgment and Opposition to Cross 

Motion for Summary Judgment, filed on April 3, 2020, by David W. Rugh, attorney for 

the Town of Charlotte. 

Reply in Support of Appellant’s Cross-Motion for Partial Summary Judgment and Opposition to 

Town’s Motion for Partial Summary Judgment, filed April 20, 2020, by Liam L. Murphy, 

attorney for Appellant Andrew Zins. 

The motion is DENIED. 

 Appellant Andrew Zins (“Applicant”) seeks to subdivide a +/-96.45-acre property located 

at 1654 Prindle Road in Charlotte, Vermont (“the Property”) into a +/-5-acre lot (“Lot 1”) and a 

+/-91.45-acre lot (“Lot 2”). The Town of Charlotte Planning Commission (“PC”) denied the 

application, which Applicant subsequently appealed to this Court. In connection with his appeal, 

Applicant filed his Statement of Questions which lists eight Questions for adjudication. 

Presently before the Court is the Town of Charlotte’s (“Town”) motion for partial 

summary judgment and the Applicant’s cross motion for partial summary judgment. By their 

respective partial summary judgment motions, both the Town and Applicant only ask this Court 

to consider whether two of the eight Questions posed in Applicant’s Statement of Questions are 
Entry Regarding Motion Page 2 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

appropriate for summary judgment, each requesting partial summary judgment in their 

respective favor only on Questions 1 and 2. Because of this procedural reality, our determination 

here will not dispose of all the legal issues raised in this appeal. 

The principal focus of all of Applicant’s Questions is a certain condition imposed by the 

Town of Charlotte Planning Commission on April 6, 2000 when it approved a prior two-lot 

subdivision that created the lot Applicant currently owns. That condition directed that any future 

subdivision of the two lots created in 2000 must include a designation of open space on the lots. 

Questions 1 and 2 of Applicant’s Statement of Questions address the alleged vagueness 

and enforceability of the 2000 Decision condition. The Town argues that the “open space” 

condition (Condition No. 3 in the 2000 approval) is unambiguous and enforceable. In the 

alternative, if the language is ambiguous, the Town contends that § 5.15 of the 1997 Bylaws and 

other extrinsic evidence demonstrate a clear meaning. Applicant cross-moved for summary 

judgment on Questions 1 and 2, arguing that Condition No. 3 is not enforceable and fails to 

provide sufficiently specific notice. We address these two Questions in our discussion below. 

 Applicant is represented by Liam L. Murphy, Esq. The Town is represented by David W. 

Rugh, Esq. 

Factual Background 

We recite the following facts solely for the purposes of deciding the pending partial 

summary judgment motions. These recitations do not constitute factual findings, since factual 

findings cannot be rendered until after the Court has completed a trial. Fritzeen v. Trudell 

Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000) (mem.); see also Blake v. Nationwide Ins. Co., 

2006 VT 48, ¶ 21, 180 Vt. 14. 

1. Applicant owns a +/-96.45-acre property located at 1654 Prindle Road in Charlotte, Vermont. 

Applicant’s property is located in the Town of Charlotte Rural Zoning District. 

2. Applicant’s Property was originally created by a two-lot subdivision application by thenLandowner Marjorie Majors and Applicant Gerladine Cohen (“2000 Application”) on January 

20, 2000. 
Entry Regarding Motion Page 3 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

3. The Town of Charlotte Planning Commission (“PC”) approved the 2000 Application on April 

6, 2000 (“the 2000 Decision”). The 2000 Decision divided the original 177.26-acre lot into the 

current Applicant’s 96.45-acre parcel (“Lot A”) and an 80.81-acre parcel (“Lot B”). The 2000 

Decision was not appealed. 

4. The Town of Charlotte Zoning Bylaws in effect at the time of the 2000 Decision (“1997 

Bylaws”) required, pursuant to § 15.5, that any subdivision which created building lots 

involving 25 or more acres were to be evaluated under the Bylaws Planned Residential 

Development (“PRD”) standards. Under § 5.15(D)(5), “[t]he [PC] shall consider the following 

guidelines when establishing open space area requirements: for PRD parcels of 25 to 100 

acres in size, open space areas are recommended to be 15% to 50% [or more] of the total 

area; for PRD parcels over 100 acres in size, open space areas are recommended to be 50% 

[or more] of the total area.” 

5. The 2000 Decision, noting that § 5.15 included open space requirements that recommended 

50% or more open space for parcels over 100 acres, imposed Condition 3, which stated that 

“the designation of open space, as required under § 5.15 of the [1997 Bylaws], will be 

deferred until any future subdivision of either [Lot A] or [Lot B]; this condition shall be added 

to the survey.” 

6. The Subdivision Plat for the 2000 Application included a description that “[a]ny further 

subdivision of either Lot [A] or Lot [B] shall require the designation of open space as required 

by [§] 5.15 of the Zoning Bylaws.” 

7. In 2006, the Town amended the 1997 Bylaws, repealing § 5.15(D)(5) in its entirety and 

relocating the PRD standards to Chapter VIII, which addresses subdivision standards.1 

8. On July 2, 2019 Applicant filed an application seeking to subdivide the 96.45-acre lot into a 

+/-5-acre lot (“Lot 1”) and a +/-91.45-acre lot (“Lot 2”). The application did not propose any 

designated open space. Applicant expressed an intention to sell the +/-5-acre lot as 

1

 The current Land Use Regulations for the Town (Approved March 1, 2016) contain several directives in Chapter 

VIII that open space requirements should be considered. See § 8.6. 
Entry Regarding Motion Page 4 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

undeveloped land and retain the +/-91.45-acre lot, upon which a single-family home already 

exists. 

9. The PC denied Applicant’s proposed subdivision on September 23, 2019 (“2019 Decision”), 

finding that Applicant did not satisfy the Stowe Club Highlands Test for permit amendment 

and denying Applicant’s request for a 2-lot minor subdivision. The PC specifically noted that 

Applicant’s subdivision plans did not include a provision for open space.2 Thereafter, 

Applicant timely appealed to this Court. 

Legal Standard 

We begin our analysis by reciting the general standard that to prevail on a motion for 

partial summary judgment, the moving party must demonstrate “that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law” on the legal 

issues presented. V.R.C.P. 56(a), made applicable here through V.R.E.C.P. 5(a)(2). When 

considering any motion for summary judgment, the nonmoving party receives the benefit of all 

reasonable doubts and inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. 

When considering cross-motions for summary judgment, the court considers each motion 

individually and gives the opposing party the benefit of all reasonable doubts and inferences. 

City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. In determining 

whether there is any dispute over a material fact, “we accept as true allegations made in 

opposition to the motion for summary judgment, so long as they are supported by affidavits or 

other evidentiary material.” White v. Quechee Lakes Landowners’ Ass’n, Inc., 170 Vt. 25, 28 

(1999) (citation omitted); V.R.C.P. 56(c)(1)(A). 

 

2

 The 2019 Decision noted that the PC “would otherwise be inclined to grant the proposed 2-Lot subdivision provided 

that at least 50% of the existing 96.45-acre parcel, including the area of the parcel with Significant Forest Habitat is 

conserved in either an open space agreement with the Town; or through a conservation easement . . . [and the PC 

would require] the designation on the plat of a maximum 1.5-acre sized building envelope on the easterly portion 

of the 5-acre lot.” See In re Andrew Zins and Cydney Spohn Application for a 2-Lot Minor Subdivision No. PC-19-107-

SD, Findings of Fact and Decision, at 8 (Charlotte Planning Commission Subdivision Review Sept. 23, 2019) 

[hereinafter 2019 Decision]. 
Entry Regarding Motion Page 5 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

Discussion 

 Applicant’s Question 1 and 2 concern whether the 2000 Decision’s deferred open space 

condition is enforceable and sufficiently clear. Applicant argues that Condition No. 3 is 

unenforceable because the condition (a) references Bylaw § 5.15, which was repealed in 2006 

and therefore is no longer applicable to current zoning applications; (b) should be interpreted by 

regulations currently in effect at the time of the application; and (c) allows for standardless 

discretion. The Town counters that Applicant’s challenge constitutes an impermissible collateral 

attack on a final condition of a prior subdivision approval, pursuant to 24 V.S.A. § 4472. Questions 

1 and 2 ask: 

1. Is the 2000 approval containing a deferred open space requirement (the “2000 

Condition”) enforceable on Applicant’s present application? 

2. Is the 2000 Condition not sufficiently specific enough to give notice to the limitations 

on the property, and is therefore, not enforceable, in violation of In re Farrell & 

Desautels, Inc., 135 Vt. 614 (1978)? 

Applicant’s Statement of Questions at 1, filed Oct. 11, 2019. 

 Under 24 V.S.A. §§ 4471 and 4472(a) an appeal is the “exclusive remedy” for a party 

seeking to alter a municipal act or decision. If a direct appeal is not taken, the decision of the 

zoning board is final and can not be contested “either directly or indirectly” in subsequent 

proceedings.3 See 24 V.S.A. § 4472(d); see also Levy v. Town of St. Albans Zoning Bd. of 

Adjustment, 152 Vt. 139, 142 (1989) (concluding that Plaintiffs were unable to collaterally attack 

a 1984 decision of the zoning board by claiming the decision was void ab initio); Harvey v. Town 

of Waitsfield, 137 Vt. 80, 83(1979) (stating that § 4472 barred collateral attack on zoning board 

3

 The Vermont Supreme Court has noted the “strong policy interests in finality” and the role of § 4472 in 

demonstrating an “unmistakable intent to limit zoning disputes to a well-defined procedure and to provide finality 

at the end of the proceedings.” See In re Hignite, 2003 VT 111, ¶ 8; City of S. Burlington v. Dep’t of Corr., 171 Vt. 

587, 590 (2000) (mem.); In re Hildebrand, 2007 VT 5, ¶ 14. 

Indeed, § 4472(a) and (d) “implement a weighty policy of repose grounded in the premise that, with respect to 

municipal zoning, ‘there should, in fairness, come a time when the decisions of an administrative officer become 

final so that a person may proceed with assurance instead of peril.’” In re Hopkins Certificate of Compliance, 2020 

VT 47, ¶ 8 (citing Levy v. Town of St. Albans Zoning Bd. of Adjustment, 152 Vt. 139, 142 (1989)); Graves v. Town of 

Waitsfield, 130 Vt. 292, 295 (1972). 
Entry Regarding Motion Page 6 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

decision when the action challenged validity of zoning ordinance which board's authority 

derived); see also Graves v. Town of Waitsfield, 130 Vt. 292, 295 (1972). 

Here, the 2000 Decision was not timely appealed by the predecessors in interest. Failure 

to timely appeal a permit condition “binds the successor in interest.” In re Hildebrand, 2007 VT 

5, ¶ 11, 181 Vt. 568; In re Sisters & Bros. Inv. Grp., LLP, No. 106-5-06 Vtec, slip op. at 6 (Vt. Envtl. 

Ct. Feb. 21, 2007) (Durkin, J.) (“[§] 4472 is broader than claim and issue preclusion, in that under 

it persons who were not parties to a prior appeal can be bound by the final determination in that 

appeal.”). Indeed, “enacted, unappealed subdivision permit conditions that are the subject of a 

subsequent amendment application are considered final and cannot be collaterally challenged 

under the explicit and interpreted directive of 24 V.S.A. § 4472.” Hildebrand, 2007 VT at ¶ 11. 

Therefore, Applicants are bound to the conditions imposed and may not collaterally attack the 

subdivision conditions either directly or indirectly. 

Applicants argue that an “applicant is entitled to review of its land use proposal under the 

iteration of the relevant land use laws in effect at the time the landowner submits a ‘proper 

application.’” See Applicant’s Cross Motion for Partial Summary Judgment at 5, Filed Feb. 28, 

2020 (citing In re Tolley Assocs., 2006 VT 132, ¶ 11, 181 Vt. 190 (citation omitted)). Under the 

vested rights doctrine, Applicants argue that § 5.15 of the 1997 Bylaws should not apply since 

Applicant submitted his application in 2019, after § 5.15 was repealed. Applicants also argue that 

the language of Condition No. 3 is vague and unenforceable. 

Both of Applicant’s arguments constitute collateral attacks on a final subdivision permit 

condition. See In re Hopkins Certificate of Compliance, 2020 VT 47, ¶ 12 (defining collateral 

attack); City of S. Burlington v. Dep't of Corr., 171 Vt. 587, 588–589 (2000) (mem.) (stating that 

the purpose of § 4472 is to “prevent any kind of collateral attack on a zoning decision that has 

not been properly appealed” (emphasis in original)). Indeed, this Court has enforced § 4472(a) 

and (d) to “prevent collateral attack on unappealed zoning decisions ‘strictly’ and ‘uniformly in 

cases stretching back several decades,’ even under circumstances where the unappealed ruling 

is alleged to be ultra vires and thus void ab initio.” Hopkins, 2020 VT 47, ¶ 10 (quoting City of S. 

Burlington, 171 Vt. at 588–590); Phillips Construction Services, Inc. v. Town of Ferrisburg, 154 Vt. 
Entry Regarding Motion Page 7 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

483, 485 (1990). Therefore, since § 4472 forecloses such a contest, this Court is deprived of 

jurisdiction to hear such claims. See Levy, 154 Vt. at 42. As such, there is no basis for a statutory 

construction analysis of § 5.15 or Condition No. 3 for vagueness nor for an assessment of whether 

vested rights apply in this instance until Applicant has shown the original permit may be 

amended. 

The Town contends that the vested rights doctrine would apply should Applicant 

demonstrate that the 2000 Decision can be amended under the Stowe Club Highlands test. See

Town’s Memorandum in Opposition to Appellant’s Cross-Motion for Summary Judgment at 5, 

filed Apr. 3, 2020. We believe there is merit to this assertion. 

While there is no dispute that Applicant is bound by the provisions of the original permit, 

we also note that permit conditions may be modified under particular circumstances: “(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.” In re Stowe Club Highlands, 166 Vt. 33, 37–

38 (1996). This very issue is raised in Questions 3, 4, and 5 of Applicant’s Statement of Questions 

and the PC’s 2019 Decision. Here, neither party has had opportunity to address whether the 

Stowe Club Highlands test could be the basis for amending the 2000 decision by removing 

Condition 3.4 Pursuant to V.R.C.P. 56 (f), this Court is permitted, after giving notice and a 

reasonable time to respond, to consider summary judgment on grounds not raised by a party in 

pre-trial memoranda. We believe such an analysis would be appropriate here, prior to this 

matter being set for a merits hearing. Therefore, if the parties agree that a further round of 

summary judgment briefing is appropriate, we direct parties to brief Questions 3, 4, and 5 of 

Applicant’s Statement of Questions. If, on the other hand, both parties believe that it would be 

more appropriate to proceed directly to a de novo trial, they should so advise the Court by the 

4

 While the Town raised the argument that Applicant “must first demonstrate that the 2000 Condition can be 

amended, applying the familiar review standards . . . [of] In re Hildebrand” in their memorandum in opposition, 

Applicant had no opportunity to address this issue. See Town of Charlotte’s Memorandum in Opposition to 

Appellant’s Cross-Motion for Summary Judgment and in reply to Appellant’s Opposition to the Town’s Motion for 

Partial Summary Judgment at 5, filed Apr. 3, 2020. 
Entry Regarding Motion Page 8 of 8. 

Zins 2-Lot Subdivision Denial, 115-10-19 Vtec slip op. (Vt. Super. Ct. Envtl. Div. Dec. 15, 2020) (Durkin, J.). 

deadline specified below.5 We note that any merits hearing conducted in the near future is 

unlikely to be conducted in person, but rather through a remote web-based platform. 

Conclusion 

For the reasons articulated above, we direct parties, by Friday, January 15, 2021, to either 

advise that they wish to proceed to trial or brief the issues raised in Applicant’s Statement of 

Questions 3, 4 and 5, which address the Stowe Club Highlands test. Resolution of this issue will 

determine whether an amendment of the 2000 Decision is warranted under applicable 

precedent. 

So Ordered. 

Electronically signed on December 15, 2020 at Newfane, Vermont, pursuant to V.R.E.F. 7(d). 

________________________________ 

Thomas S. Durkin, Superior Judge 

Environmental Division 

5

 We recognize that an analysis of whether the 2000 Decision should be amended is likely to be a very factdependent analysis that would therefore not be easily addressed in pre-trial motion practice, and therefore 

understand that the parties may prefer to proceed directly to trial.