1

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Geddes PUD Conditional Use Application } Doc ket No. 293-12-08 Vtec (Appeal of Lindala) } }

Decision and Order on Appellee-Applicants’ Motion f or Summary Judgment Appellant Roger Lindala appealed from a decision of the Zoning Board of Adjustment (ZBA) of the Town of Bakersfield approvi ng Appellee-Applicants Gary and Gloria Geddes’ application for conditional use appr oval of their Planned Unit Development (PUD). Appellant Lindala has appeared and represen ts himself; Appellee-Applicants Gary and Gloria Geddes (Applicants) are represented by J oseph F. Cahill, Esq. Interested Parties Michael Curry and Deborah MacFarlane are re presented by Thomas G. Walsh, Esq.,

but have not filed memoranda on the current motion. The Town of Bakersfield has not entered an appearance. Applicants have moved for summary judgment on all f ive questions in the Statement of Questions. The following facts are un disputed unless otherwise noted, including some facts found as undisputed in the Aug ust 22, 2008 summary judgment decision in Docket No. 101-5-07, to the extent helpf ul to understand the procedural history of this conditional use application.

Applicants own an approximately 100-acre parcel of property located at 1697 Egypt Road in the Town of Bakersfield, in the Rural zoning district. Appellant Lindala owns property adjacent to and southeasterly of Applicant s’ property. Applicants obtained sketch plan approval in November of 2005 for a conventiona l nine-lot subdivision consisting of

seven ten-acre lots and two thirteen-acre lots, as w ell as a separate lot of approximately2

four acres consisting of the land lying under the s ubdivision roadway right-of-way. At that time, the Planning Commission suggested there might be a possibility of redesigning the project as a clustered development so that Applican ts could develop the same number of building lots, but on smaller parcels, either retai ning the remaining land in some way protected from development or conveying it to the e ventual lot owners as common land. In 2006 Applicants therefore submitted a new subdi vision application and site plan (the 2006 Application), together with a draft Declar ation of Planned Community (Declaration), which was the subject of Docket No. 1 01-5-07 Vtec. The site plan showed nine lots, ranging from 29.4 acres down to 4.6 acre s in size, with smaller apparent building envelopes, and with 65.3 acres shown as “open space/ common land.” It was unclear from the site plan provided with the motions in Docket N o. 101-5-07 Vtec as to how the “open space/common land” was intended to be treated. The “open space/common land” as shown on the site plan appeared to be comprised of portions of the individual lot areas, although § 6.01(a) of the proposed Declaration defi ned the 65.3 acres shown as “open space/common land” as making up the “common element s” of the planned community. That ambiguity has not been resolved in the materia ls provided in connection with the motions in the present appeal. The 2006 application had been considered by the Pl anning Commission both as a major subdivision and as a planned residential deve lopment. The Planning Commission approved the project, with six conditions. The Plan ning Commission decision recognized that the project differed from an application for a conventional subdivision in its proposal for reduced-size lots, limited building envelopes, an d areas designated as open space or common land, but did not mention the reduced frontag e proposed for Lot 3. This Court’s August 22, 2008 summary judgment decis ion in Docket No. 101-5-07 Vtec noted that the term “planned unit development” was defined in § 849 of the 20063

Zoning Bylaws 1 in terms of the statutory definition, 24 V.S.A. § 4 303(19), which in turn encompasses the all-residential type of development that formerly had been defined by the term “planned residential development” under the fo rmer statute and bylaws. See generally 24 V.S.A. § 4417; In re Dodge Farm Commun ity, LLC, Concept Plan , Docket No. 155-7-07 Vtec, slip op. at 3 n.1 (Vt. Envtl. Ct. Mar . 24, 2008) (Wright, J.). In its summary judgment decision in Docket No. 101-5-07 Vtec, the C ourt made it clear that § 303.6.3 of the Zoning Bylaws requires a Planned Unit Development t o obtain conditional use approval from the Zoning Board of Adjustment, independently of obtaining the approvals within the jurisdiction of the Planning Commission that were t he subject of Docket No. 101-5-07 Vtec. Following issuance of the summary judgment decisio n in Docket No. 101-5-07 Vtec, on September 19, 2008, Applicants applied for conditi onal use approval under § 303.6.3. 2 The ZBA’s decision on that application is the subje ct of the present appeal. The only conditions imposed by the ZBA were that the Plannin g Commission deal with the waiver request for the insufficient road frontage of Lot 3 (or that, if the lot is sold, that the owner apply for a variance regarding the insufficient fro ntage before constructing a residence). The Town of Bakersfield has since adopted a new zo ning ordinance. As the new ordinance differs substantially from the old one, Ap plicants had the choice to reapply under the new zoning ordinance if they wished to do so. Under 24 V.S.A. § 4449(d), the 2006 ordinance remains applicable as of the Septemb er 19, 2008 date of the conditional use application, as the new ordinance was not noticed fo r public hearing until after that date.

1 All citations to section numbers refer to sections of the 2006 Zoning Bylaws unless otherwise noted.

2 The Court notes that the application to the ZBA f or conditional use approval provided in the present appeal as Appellee-Applicants’ Exhibit 2 also contains requests for waivers for lot sizes and for the frontage of Lot 3. These req uested waivers are not within the jurisdiction of the ZBA in conditional use approval , but are instead the province of the Planning Commission. See § 402.2.4

Question 1 of the Statement of Questions Question 1 of the Statement of Questions asks “[w]h ether the application can be considered for Conditional Use under [§] 303.6.3 of the bylaws, specifically with respect to its being organized as a PUD, and whether the statut ory standards alone are adequate to decide the suitability of the subdivision.” This issue was resolved in the August 22, 2008 summ ary judgment decision in Docket No. 101-5-07 Vtec, with respect to conditiona l use review, under the 2006 Zoning Bylaws, as follows:

The 2006 Zoning Bylaws allocate . . . conditional u se review to the Zoning Board of Adjustment, § 200.3.1. . . . . Odd ly, however, the Zoning Bylaws are completely devoid of standards or criter ia for the task[] of . . . conditional use review. With respect to conditional use review, the statutor y general standards now contained in 24 V.S.A. § 4414(3)(A) g overn conditional use review, whether or not those standards have been wri tten into the particular town’s ordinance. In re Application of White , 155 Vt. 612, 618–19 ([1990]); Richards v. Nowicki , 172 Vt. 142 (2001); In re John A. Russell Corp. , 2003 VT 93, ¶¶ 25–28, 175 Vt. 520, 525–26. Thus, even though i t would be better practice for the Zoning Bylaws to contain the stand ards for conditional use review, in the absence of those standards the ZBA co uld proceed with a conditional use review application by applying the statutory review criteria.

Accordingly, summary judgment is GRANTED to Applican ts on Question 1 of the Statement of Questions. The subdivision may be con sidered for conditional use approval by the ZBA, and by this Court in this de novo appeal, as a Planned Unit Development, using the statutory standards for conditional use a pproval. 3

3 If Applicants now prefer to have the application a ddressed under the 2009 Zoning Bylaws, they shall so state in writing on or before April 29, 2009, so that both appeals could be remanded, scheduled, and ruled upon by the Plannin g Commission and ZBA in time to use the already-scheduled date of August 19, 2009, fo r the trial of any subsequent appeal. The 2009 Bylaws now contain standards for the Plann ing Commission’s review of PUDs,5

Question 2 of the Statement of Questions Question 2 asks “whether the Conditional Use can b e accepted in that its conditions do not address the application[’s] failure to meet the ([§] 303.6) Objectives of the Rural District.” It is not entirely clear what Appellant means by the word “accepted” in Question 2; for the purposes of this motion the Court will a ssume that he means “approved.” Because this proceeding on appeal is de novo , it will be for the Court to determine whether the project qualifies for conditional use a pproval, and, if so, what conditions, if any, should be imposed. The affidavit of Applicants ’ engineer provides facts (incorporated by reference from Docket No. 101-5-07 Vtec), as well as the engineer’s opinion, in support of the project’s compliance with the requirements o f § 303.6.1 of the 2006 Zoning Bylaws. As discussed in the August 22, 2008 decision in Dock et No. 101-5-07 Vtec, the party opposing a motion for summary judgment may not rest on mere allegations or merely deny the adverse party’s statement of material fact s. Rather, the adverse party must lay out specific facts, supported by evidence, showing a need for trial. Field v. Costa , 2008 VT 75, ¶ 14 (citing V.R.C.P. 56(e)). To oppose Applicants’ motion for summary judgment on Question 2, Appellant has asserted several specific facts regarding whether t he proposal meets the requirements of § 303.6.1, or to show a need for a trial on this iss ue. These facts pertain to the potential or proposed building placement (not shown on the site plan), the nature of the common open land and its restrictions (about which the August 2 2, 2008 decision in Docket No. 101-5-07 Vtec noted ambiguities), and the alternate plan that would require multiple driveways from Egypt Road. Because material facts are in dispute, or at least have not been provided to the Court,

and also contain more specificity regarding the ZBA ’s application of the five statutory standards for conditional use review.6

regarding the proposed project’s design and therefo re its compliance with § 303.6.1, summary judgment is DENIED. Question 2 remains for trial.

Question 3 of the Statement of Questions Question 3 raises two issues as to the Declaration : whether it is a “lawful instrument,” and whether it is “adequate to mitigate the effects of the development where the development does not meet the ([§] 303.6.4) min imum lot size requirements of the Bylaws.” As discussed in the August 22, 2008 summary judgment decision in Docket No. 101- 5-07 Vtec, this Court does not have subject matter j urisdiction over issues arising under Title 27A of the Vermont Statutes, relating to wheth er the Declaration is a “lawful instrument.” This Court has statewide jurisdiction to hear certain matters specified by statute. 4 V.S.A. § 1001(b), 10 V.S.A. § 8504. As with regard to Questions 8 and 9 of Docket No. 101-5-07 Vtec, to the extent that Question 3 rai ses an issue beyond this Court’s subject matter jurisdiction, that issue must be dismissed. The remainder of Question 3 raises a legitimate iss ue within the scope of conditional use approval and remains for trial: whether conditi ons imposed by the ZBA regarding the Declaration are adequate to meet the conditional us e criteria, in particular those criteria governing the character of the area, and the bylaws in effect (with regard to minimum lot size).

Questions 4 and 5 of the Statement of Questions Questions 4 and 5 ask whether additional conditions are necessary under § 402.2, to avoid “nullifying the intent and purpose” of the By laws (specifically § 303.6) and to “secure substantially” the objectives of the Bylaws (specif ically § 303.6). The quoted sections of § 402.2 are from the section of the subdivision regulations7

allowing the Planning Commission to waive or vary a ny inappropriate or unnecessary improvements (or application submission requirement s). Section 402.2 only applies to the Planning Commission’s (and hence this Court’s) task regarding lot size waiver (in Docket No. 101-5-07 Vtec), as well as the remaining task of the Planning Commission regarding waiver of the frontage for Lot 3. Section 402.2 does not apply to the present case, i n which the Court sits in place of the ZBA to rule on condi tional use approval of the project.

Accordingly, based on the foregoing, it is ORDERED a nd ADJUDGED that Applicant’s Motion for Summary Judgment is GRANTED as to Questions 1, 4, and 5, which are DISMISSED; Applicant’s Motion for Summary Judgm ent is GRANTED in PART and DENIED in PART, as discussed above, as to Question 3; and Applicant’s Motion for Summary Judgment is DENIED, as discussed above, as t o Question 2. With respect to the issues remaining from Question s 2 and 3 for trial, what is at issue in the present appeal is whether these or different conditions should be imposed de novo by the Court on the merits of the conditional use a pplication. These issues and the remaining issues in Docket No. 101-5-07 Vtec are sc heduled to be tried together on August

19, 2009. Please note the deadline in footnote 3, ab ove, so that the Court can keep to the scheduled trial date. The final pretrial conferenc e remains scheduled for August 6, 2009; please advise the Court if the parties request any earlier pretrial conference.

Done at Berlin, Vermont, this 21 st day of April, 2009.

_________________________________________________ Merideth Wright Environmental Judge