State of Vermont Superior Court—Environmental Division

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In re Atwood/Hood PRD Perm. Amendment Docket No. 182-12-12 Vtec

Title: Cross Motions for Summary Judgment (Filing N os. 1, 2, & 3)
Filed By: Town of Williston, Vermont (5/10/13); Ap pellants Bryant Hamrell and Igor Arsovski (5/10/13); and Applicants Jeff Atwood, Dana Hood, a nd Brenda Hood (5/13/13).

Town’s Response in Opposition to Appellants’ Motion for Summary Judgment filed on 5/24/2013. 1 Applicants’ Response in Opposition to Appellants’ M otion for Summary Judgment filed on 5/29/13
Appellants’ Response in Opposition to Applicants’ M otion for Summary Judgment filed on 6/6/13
Appellants’ Response in Opposition to Town’s Motion for Summary Judgment filed on 6/6/13

X Granted as to Appellants’ SJ Motion and Denied as to Town’s and Applicants’ Motion.

At issue in this appeal by Bryant Hamrell and Igor Arsovski (“Appellants”) is the decision of the Town of Williston Development Revie w Board (“DRB”) approving proposed amendments to a previously permitted nine-lot subdi vision by Applicants Jeff Atwood, Dana Hood, and Brenda Hood (“Applicants”). The Town of Williston (“Town”) has amended its zoning regulations since the date that Applicants o btained the original subdivision permit. All parties agree that Applicants acquired vested right s in the original subdivision permit obtained under the previous zoning bylaws. Appellants, howe ver, argue that the changes Applicants propose to their subdivision are so substantial tha t the revised proposal should be submitted as a new application and subject to the current Willis ton Unified Development Bylaws (“Bylaws”) rather than the land use regulations that were in e xistence at the time of the first approval. The Town and Applicants argue that the proposed subdivi sion changes are insignificant and do not affect Applicants’ vested right to have the propose d modifications considered under the prior regulations. 2

Discussion

We begin our analysis of the pending motions with t he common maxim that summary judgment may only be granted upon a showing that “t here is no genuine dispute as to any material fact and the movant is entitled to judgmen t as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). In this appeal, the parties ha ve presented the Court with a stipulated

1 The Town titles its filing “Response to Two Motio ns for Summary Judgment,” but as the Town and Applicants both favor granting the permit for the p roposed changes, the focus of the Town’s filing is on opposing Appellants’ motion.

2 Citing to two cases involving on-the-record towns , Applicants also argue that this Court should empl oy a substantial evidence standard of review to the DR B’s factual findings. (Applicants’ Mot. for Summ. J. at 1-2, filed May 13, 2013.) This is not the correct legal standard in this case because the Town of Wil liston has not elected to subject its DRB hearings to on-t he-record review.In re Atwood-Hood Permit Amend., No. 182-12-12 Vtec (EO on Cross Mot. for Summ. J.) (8-27-13) Pg . 2 of 3.

statement of undisputed material facts. We commend the parties on their cooperation in providing the Court with this stipulation, as it ha s eased our review of the pending motions. Thus, this decision on cross motions for summary ju dgment concerns the legal question of whether the changes that Applicants propose are so substantial that the revised proposal should be subject to the current Bylaws rather than the la nd use regulations in effect at the time of the initial subdivision approval. The Bylaws contain t he controlling law in this case, as they squarely address the issues at hand. In interpreti ng zoning ordinances, this Court applies the plain meaning of the relevant provision’s text, unl ess that text is uncertain. In re Miserocchi, 170 Vt. 320, 324 (2000).

Chapter 2 of the Bylaws defines vested rights and e xplains, “[a]ny substantial change in the approved final plans for a development voids it s vested rights,” although minor changes may be allowed with the approval of the Zoning Admi nistrator. Bylaws § 2.2.5. For guidance on the topic of proposed changes, the Bylaws provid e a section entitled “Changes in Development Plans after a Permit is Approved.” Byl aws § 5.6. That section lists, as an example of a small dimensional change that the Zoning Admin istrator could approve, the “shift[ing] [of] a door, and the sidewalk leading from the parking a rea to that door, by a few feet in order to accommodate a change in a proposed building’s floor plan.” Bylaws § 5.6.2.2. In contrast, the Bylaw defines a “substantial change,” in pertinent part, as a change that alters any one or more of several factors, including:

• the location, extent, or design of any required imp rovements, public or private, including, but not limited to, proposed runoff and erosion control measures, utilities, parking areas, driveways, roads, trails, sidewalks, street trees, and landscaped buffers, 3 (Bylaws § 5.6.3.4);

• the approved number of . . . buildings, structures, [or] units (Bylaws § 5.6.3.5); or

• any other architectural or landscape feature that i s not “minor work” as defined by [Bylaws §] 4.3.5.

The parties here agree that Applicants propose to a mend their permit as follows: (1) leave the existing single family dwelling in it s current location rather than moving it westward as the original application indicates; (2) relocate a proposed duplex building from the east side of the site to the west side of the site; (3) move the proposed triplex building from one side of the proposed road to the other, where a dup lex building had originally been proposed; (4) add garages for the triplex building; 4 and (5) shift the orientation of a second proposed duplex building. (Stipulated Statement of Undisput ed Material Facts at 3, No. 15, filed May 3, 2013.) Applicants’ Exhibit B is a site plan that s uperimposes the proposed changes upon the originally approved site plan, revealing the reconf iguration of buildings on the site as well as the relocation of portions of roadways and pathways . See attachment to Applicants’ Resp. in Opp’n to Appellants’ Mot. for Summ. J., filed May 2 9, 2013.

3 This provision makes an exception for minor chang es approved under Bylaws § 5.6.2.4, which in turn states that “minor changes in the location and spec ifications of required improvements may be permitte d. They must be referred to and approved by the Depart ment of Public Works before being permitted by the

Administrator.”

4 The description that Applicants provided also ind icated that their revised plan would eliminate a garage previously proposed to be placed next to the existing single family dwelling. (Stipulated Statement of Undisputed Material Facts at 4, No. 18 , filed May 3, 2013.)In re Atwood-Hood Permit Amend., No. 182-12-12 Vtec (EO on Cross Mot. for Summ. J.) (8-27-13) Pg . 3 of 3.

We conclude that the changes are substantial, as th at term is defined in Bylaws § 5.6.3. The proposed changes alter the number of buildings, structures, or units that will be located on particular lots and alter the location, extent, or design of required improvements such as roads and pathways. The proposed changes also alter the type and placement of multiple buildings in the subdivision in ways that do not come under t he “minor work” exception in Bylaws § 4.3.5, which provides exceptions to the types of changes that would otherwise be deemed substantial, such as small accessory structures of less than 120 square feet, additions of less than 1,000 square feet to existing buildings, exterior r emodels of existing buildings, or site work affecting less than 1,000 square feet.

Applicants and the Town argue that the changes Appl icants propose are insubstantial, pointing out that the overall number of principal b uildings and total units remains the same. Similarly, Applicants and the Town provide figures about the net effect of the changes on the overall disturbed area, building footprints, and im pervious area within the subdivision as a

whole.

While it may be true that some of the proposed amen dments could have beneficial effects when considered in the aggregate across the entire area of the subdivision, nothing in the plain language of the Bylaws suggests that the DRB or this Court should look to net effects or otherwise conduct a balancing test when considering the magnitude of proposed changes. To the contrary, several portions of Bylaws § 5.6.3 em phasize that changes may be substantial when they alter not only the extent, but also the l ocation of various features. This language makes practical sense; while the rearrangement of b uildings within a subdivision may alter, for example, the total impervious surface area, the cha nges in the location of the particular impervious surfaces added or eliminated could creat e localized effects that concern specific interested persons. Indeed, the documents filed in this case include a statement by Appellant Arsovski explaining his concern that the proposed i ncrease of development density near his property and the increase in impervious surface are a nearby will exacerbate water drainage problems in his back yard. See Ex. E at 29–30, fil ed May 3, 2013.

Conclusion

For the reasons detailed above, we GRANT summary judgment to Appellants and

DENY the same to the Town and to Applicants. Applicant s retain the vested rights to build according to their original plan in compliance with the regulations in effect at the time of that application. Additionally, this decision does not preclude Applicants from seeking to amend their original plan in ways that do not amount to s ubstantial changes, as that term is defined in the Bylaws.

_________________________________________ August 27, 2013 Thomas S. Durkin, Judge Date

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Copies sent to:
Paul Gillies, Esq., attorney for the Town of W illiston
Chad Bonanni, Esq., attorney for Appellants Br yant Hamrell and Igor Arsovski
Randolph L. Amis, Esq., attorney for Applicant s Jeff Atwood, Dana Hood, and Brenda Hood