STATE OF VERMONT ENVIRONMENTAL COURT

} Stowe Highlands PRD } Docket No. 184-8-06 Vtec } }

Decision on Pending Motions Appellant 232511 Investments, Ltd. d/b/a/ St owe Highlands (Stowe Highlands) appealed from a decision of the Town of Stowe (Town) Development Review Board (DRB) dated July 22, 2006, denying Stowe Highland’s application to c onvert its 236± acre Reso rt PUD to a PRD, merge three parcels (so-called Parcel 1 and Lots 21 and 22), and then su bdivide the resulting 22 acres into 13 residential lots plus a 9.3-acre ope n space lot. The DRB denied the application by answering in the negative the following thresh old question: whether Stowe Highlands can act unilaterally in seeking to change the development from a Resort PUD to a PRD, thus concluding that Stowe Highlands, by itself, was not the proper applicant for the requested changes. Stowe Highlands filed five Questions in its Statement of Questions, and the Town moves to limit the scope of the appeal to Questions 1–3 . Interested Persons Leighton C. Detora, Esq., Dominique Root, and Valar and Lisa Mihan filed se parate motions to dismiss Questions 4 and 5. This appeal is “on-the-record” because the To wn has adopted and implemented the procedures necessary for such appeals, pur suant to 24 V.S.A. § 4471(b). Stowe Highlands is represented by Harold B. Stevens, Esq., the Town is represented by Amanda Lafferty, Esq., Interested Person Dominique Root is represented by George C. Stearns, Esq., Interested Persons Valar an d Lisa Mihan are represented by Russell Barr, Esq., Interested Persons Christopher and Mary Lintermann ar e represented by Carl H. Lisman, Esq., and Interested Person Leighton C. Detora, Esq., represents himself.

Stowe Highlands’s Statement of Questions The present motions relate solely to the appropriateness of the Questions submitted by Stowe Highlands for determination by this Court. Stowe Highlands’s five Questions are copied

here for reference. 1. Did the Tenth Supplement to the Decl aration of Stowe Highlands give Stowe Highlands authorization in writing to apply for the permit change from a Resort Planned2 Unit Development (“PUD”) to a Planned Resi dential Development (“ PRD”) on behalf of all the Stowe Highlands lot owners? 2. Did the DRB err in concluding th at Stowe Highlands was not the proper applicant to change the Resort PUD to a PRD? 3. Does . . . Stowe Highlands have control of the Stowe Club Property as Declarant [and] has [it] reserved the right to grant itself permits, easements and licenses over the entire Stowe Club Property? 4. Does the plan submitted by Stowe Highla nds comply with all the standards of a PRD contained in Stowe’s zoning by-laws? 5. Should Stowe Highlands have been gr anted the permit for which it applied for 13 Village Houses on Parcel 1 and Lots 21-22?

Discussion The Town’s motion seeks to limit the scope of the appeal to Questions 1–3; Interested Persons Detora, Root, and Mihan’s motions to di smiss Questions 4 and 5 share the same basis: that the DRB denied Stowe Highland’s applica tion on the threshold question of whether Stowe Highlands, by itself, was the proper applicant. Thus the DRB never reached the substantive issue of whether the plan submitted by Stowe Highlands complies with the Town’s standards regarding PRDs. Since the DRB never addressed the substance of Stowe Highland’s application in the first instance, movants argue that Questi ons 4 and 5, which relate to those substantive issues, are beyond the scope of the appealed-from decision and thus improper for this Court to consider. We agree and theref ore grant the pending motions.

In a de novo appeal, this Court stands in the place of the decision maker below, and looks anew at the application as if no decision had been rendered below. V.R.E.C.P. 5(g). By contrast, in an on-the-record appeal such as this one, the Court is tasked with determining whether the decision below is supported by subs tantial evidence in the record. 24 V.S.A. § 4471(b). In an on-the-record appeal, the Court may not st ray beyond the boundaries of the appealed-from decision to consider issues not decided below. See In re Dunnett , 172 Vt. 196 (2001) (summarizing the requirements a municipali ty must fulfill to have appeals from its DRB determinations be “on-the-record” and comparing the difference of such proceedings and de

novo appeals.). The limited nature of on-the-record review does not allow us to render our own

factual determinations. We decline to do so here. In this case, the DRB made the legal determ ination that “the application was not properly before the Board, in that [Stowe Highlands], by itself, is not the proper applicant for the3 requested changes.” DRB Decision dated July 22, 2006, at 3. Stowe Highlands is here appealing the DRB’s decision on th at preliminary legal question. Stowe Highlands is not here appealing a decision as to the merits of its ap plication, as no decision on the merits of the application was reached below. It would therefor e be improper for this Court to take up such an issue, since the municipal panel below did not first address it. Stowe Highlands’s Questions 4 and 5 relate to the merits of its application. The issues raised by the merits of Stowe Highland’s applic ation are beyond the parameters of the appealedfrom decision. We must theref ore grant the motions to dismi ss Questions 4 and 5 filed by Interested Persons Detora, Root , and Mihan. For the same re asons, we conclude that Stowe Highlands’s Questions 4 and 5 are by their na ture beyond the scope of the appealed-from decision, and therefore grant the To wn’s motion to limit the scope of the appeal to Questions 1, 2

and 3.

Accordingly, based on the forgoing, we GRANT the Motions to Dismiss filed by Interested Persons Detora, Root, and Mihan, as well as the Town’s Motion to Limit the Scope of the Appeal. This matter shall be set for a fo llow-up conference, per the enclosed Notice of Hearing. Since this is an on-th e-record appeal, there will be no “trial” or the taking of new evidence in this matter. At the follow-up telephone conference, the parties should be prepared to discuss a briefing schedule to address the remaini ng issues in this appeal and report to the Court

the status of their efforts at mediation. We note that the parties were to report to the Court the identity of their agreed -upon mediator by October 31 st , but the Court has ye t to receive this information from the parties.

Done at Berlin, Vermont this 2 nd day of November, 2006.

____________________________________ Thomas S. Durkin, Environmental Judge