STATE OF VERMONT 

SUPERIOR COURT — ENVIRONMENTAL DIVISION 

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In re Union Bank (Jeffersonville) { Docket No. 7-1-12 Vtec 

(Act 250 Application #5L0468-7) { (Appeal from District 5 Envtl. Comm.) 

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Decision on Cross-Motions for Summary Judgment 

On March 25, 2011, Union Bank applied for an Act 250 permit from the District 5 

Environmental Commission (“the Commission”) for the construction and operation of a bank 

facility in the Village of Jeffersonville, Vermont (“the Project”). On October 26, 2011, the 

Commission issued its Findings of Fact, Conclusions of Law, and Order, which concluded that 

the Project as proposed complies with all applicable Act 250 criteria except Criterion 10 and 

denied Union Bank’s application on the grounds that the Project did not conform to the Village 

of Jeffersonville Municipal Plan (“the Plan”). Union Bank appealed the Commission’s 

determination to this Court. The Village of Jeffersonville (“the Village”) filed an appearance 

and moved for summary judgment, arguing that the Project does not conform to the Plan and 

therefore does not comply with Act 250 Criterion 10 as a matter of law. Jean Jenkauskas, an 

additional party to this appeal, joined the Village’s motion for summary judgment. Union Bank 

filed a cross-motion for summary judgment on the Criterion 10 issue. 

Factual Background 

For the purposes of analyzing the pending summary judgment motions, we consider the 

following material facts, all of which we understand to be undisputed, unless otherwise noted 

below: 

1. On March 25, 2011, Union Bank filed an application for an Act 250 permit to construct 

and operate a bank facility on a site at the intersection of Vermont Routes 15 and 108 in the 

Village, a municipal entity within the Town of Cambridge, Vermont (“the Town”). 

2. The Project tract is generally, although not entirely, situated within the 100-year 

floodplain of the confluence of the Brewster and Lamoille Rivers, as designated by the Federal 

Emergency Management Agency (“FEMA”) mapped Special Flood Hazard Area. 

3. The Project would be located on a portion of the former Bell-Gates Lumber yard 

property (“the Bell-Gates site”). 
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4. The Village adopted Flood Hazard Area Zoning Bylaws on April 11, 1994 (“the 1994 

Bylaws”); those Bylaws were in effect on March 25, 2011 when Union Bank submitted both of its 

applications. 

5. The Village adopted its Municipal Plan on October 12, 2009. 

6. The Village replaced the Flood Hazard Area Zoning Bylaws by adopting the Inundation 

Hazard Area Bylaws on July 6, 2011 (“the 2011 Bylaws”). 

Discussion

The Parties raise three similar issues in the pending motions: first, whether the Plan 

language evidences a mandatory policy prohibiting certain new development in the flood 

hazard areas; second, if some Plan provisions are mandatory, whether they are clear and 

unambiguous in light of other Plan provisions; and finally, if there is ambiguity, whether the 

1994 or the 2011 Bylaws should be used to interpret the Plan. 

The Village argues first that the Plan language evidences a mandatory policy against any 

new commercial development in the flood hazard areas. The Village also argues that the 

provisions are clear and unambiguous in the application of that policy to the flood hazard area, 

including the Bell-Gates site. Finally, the Village argues that the 2011 Bylaws should be used to 

interpret the Plan because they implement the provisions of the Plan and considering them is 

fair because the proposal to adopt of the 2011 Bylaws was noticed prior to Union Bank’s 

completed Act 250 permit application. 

Union Bank argues that the Plan language is merely aspirational and not mandatory. In 

the alternative, it argues that the Plan is ambiguous because the Plan specifically discusses 

future mixed-use development on the Bell-Gates site. Finally, Union Bank argues that the 1994 

Bylaws must be used to interpret the Plan because its rights under those Bylaws vested at the 

time it filed a completed municipal application. 

Summary Judgment Standard 

Vermont Rule of Civil Procedure 56 provides the standard for deciding motions for 

summary judgment. The court will grant summary judgment to a moving party only if that 

party demonstrates that “there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2). When considering 

cross-motions for summary judgment, the court looks at each motion individually and gives the 

opposing party the benefit of all reasonable doubts and inferences. City of Burlington v. 
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Fairpoint Commc’ns, 2009 VT 59, ¶ 5, 186 Vt. 332. The court also accept as true all factual 

allegations made in opposition to a motion for summary judgment, so long as they are 

supported by “specific citations to particular parts of materials in the record.” V.R.C.P. 

56(c)(1)(A). Both parties have submitted statements of undisputed material facts. 

Act 250 Criterion 10 Standards 

The sole legal issue raised in Applicant’s appeal and this part of the pending motions is 

whether the Project conforms to the Plan as required by Act 250 Criterion 10. 10 V.S.A. 

§ 6086(a)(10). The burden of proof under Criterion 10 is on the applicant to show conformance. 

10 V.S.A. § 6088. The Vermont Supreme Court has, however, cautioned against denying an Act 

250 permit based on nonconformance with “nonregulatory abstractions” in a municipal or 

regional plan. In re Molgano, 163 Vt. 25, 31 (1994). 

A determination of nonconformity with a municipal or regional plan requires two 

elements. First, a determination must be made that the relevant plan provisions are mandatory 

in nature and not merely aspirational. In re Rivers Dev., LLC, Nos. 7-1-05 Vtec and 68-3-07 

Vtec, slip op. at 9 (Vt. Envtl. Ct. Jan. 8, 2008) (Durkin, J.). If the plan language is intended only

to establish broad goals and not mandatory standards, the inquiry ends and a project cannot be 

denied under Criterion 10, based upon that language alone. Second, a finding of nonconformity 

must be “based on a ‘specific policy’ set forth in the plan . . . and stated in language that ‘is clear 

and unqualified, and creates no ambiguity.’” In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 

Vt. 520 (quoting In re Green Peak Estates, 154 Vt. 363, 369 (1990); In re MLB Assocs., 166 Vt. 606, 

607 (1997) (mem.) (internal citations omitted)). So, even if the plan language is mandatory it 

must also contain objective and unambiguous standards. Ambiguity alone, however, will not 

render plan language unenforceable. 

Where provisions of a plan are ambiguous, Act 250 dictates that the district commission, 

and thus this Court during a de novo review, “shall consider bylaws, but only to the extent that 

they implement and are consistent with those provisions, and need not consider any other 

evidence.” 10 V.S.A. § 6086(a)(10). Generally, the bylaws in effect at the time of the filing of a 

proper application will control. Molgano, 163 Vt. at 32 (citing Smith v. Winhall Planning 

Comm’n, 140 Vt. 178, 181-82 (1981)). If a municipal zoning permit application predates an Act 

250 application, the bylaws in effect at the time of the municipal application will also apply in 

the Criterion 10 analysis. Id. at 33. Where there are no applicable zoning bylaws, the Court 
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must “construe the plan as best it can, based on various rules of construction or supporting 

evidence of municipal legislative intent.” Re: Times and Seasons, LLC and Hubert K. Benoit, 

No. #3W0839-2-EB, Findings of Fact, Concl. of Law, and Order (Altered), at 60 (Vt. Envtl. Bd.

Nov. 4, 2005). 

Does the Plan Contain Mandatory Policies or Mere Guidance? 

In the Water Resources subchapter, the Plan discusses development in “Flood Hazard 

areas.” The Plan states: 

Floodplains are considered unsuitable for development for several reasons: 

potential danger to life and property, loss of flood water storage, effects on 

channel capacity and down stream water tables. Jeffersonville residents are 

strongly encouraged not to develop in the flood hazard areas as they risk 

significant financial loss if a flood occurs. 

Plan at 20. The “Goals, Policies, & Recommendation” section of the Plan describes the 

following goal: “To protect the health, safety and welfare of the residents of Jeffersonville by 

limiting development in flood hazard areas to agriculture, recreation, and open space.” Id. at 

22. Under “Policies” the Plan states, “No development should occur within a flood hazard 

area” and “Agriculture, recreation fields, parks, and open space are all appropriate uses of flood 

hazard areas.” Id. Also, in describing the Flood Hazard Overlay District (also called the Flood 

Hazard Area District) the Plan states, “Flood hazard areas offer excellent opportunities to locate 

recreational, open space, and other uses which do not require the placement of structures or fill. 

This area is not suited for other uses due to the risk of frequent flooding.” Id. at 57. 

In deciding whether these provisions evidence mandatory policies it is important to 

consider the nature of town and regional plans. As the Environmental Board noted, 

Most town plans and regional plans are not written like zoning bylaws. They 

frequently do not contain words such as “prohibited” or phrases such as “shall 

not be allowed.” But this does not mean that they are legally meaningless. Town 

and regional plans by their very nature, as the Board has recognized, are 

aspirational. . . . But despite the recognition that town and regional plans are 

“abstract and advisory,” Act 250 requires that projects comply with a “local or 

regional plan,” if one exists. The Board is therefore obliged by the language of 

the law itself to give regulatory effect to a document which is often not written in 

regulatory language. 

Re: Mclean Enters. Corp., No. 2S1147-1-EB, at 80 (Vt. Envtl. Bd. Nov. 24, 2004) (citations 

omitted). Viewed this way, we conclude that the Plan language amounts to more than mere 

guidance and evidences a mandatory policy of prohibiting some types of new development in 
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Flood Hazard areas. Specifically, the Plan “limits” development in flood hazard areas to 

agriculture, recreation, or open space uses, indicating that other uses are prohibited. The Plan 

states that “No development should occur within a flood hazard area.” Plan at 22 (emphasis 

added). While “should” is often interpreted as non-mandatory, when combined with the 

phrase “no development,” as it is here, and within the context of the other Plan provisions, the 

language is properly viewed as more than guidance. We cannot hold as a matter of law, as 

Union Bank asks us to, that these provisions are legally meaningless and not intended to have 

some regulatory effect. 

Is the Plan Clear, Specific, and Concrete or Ambiguous? 

To the extent that the Village argues that the Plan clearly and unambiguously prohibits 

Union Bank from building a new bank on its property, we likewise cannot agree. Even where 

certain provisions of a plan evidence “specific and concrete expression of the plan’s policy,” a 

plan may still be ambiguous where other parts of the plan “are far less specific or definitive.” In 

re Kisiel, 172 Vt. 124, 142 (2000) (finding town plan ambiguous despite clear and concrete policy 

where there were no specific standards for enforcement). When a plan contains inconsistent or 

conflicting provisions it may be ambiguous as applied to a specific project. 

The court cannot ignore the Plan provisions that specifically mention the parcel at issue. 

The Plan’s Economic Development section states, “The old Bell-Gates Lumber site is an 

excellent area for some type of mixed use redevelopment. Although the loss of this industry 

was a blow to the local economy, the site now provides a unique opportunity for Jeffersonville 

to grow and increase the overall vibrancy of the community.” Plan at 31. It is undisputed that 

the majority of this parcel is within the Flood Hazard Area. The Village argues that there is no 

inconsistency because some portion of the Bell-Gates site is outside of that area. This 

interpretation, however, does not clearly and unambiguously follow from the Plan language 

such that an owner of the Bell-Gates site is on notice of the uses that are either permitted or 

prohibited on the site. See In re Pion Sand & Gravel Pit, No. 245-12-09 Vtec, slip op. at 18 (Vt. 

Super. Ct. Envtl. Div. Jul. 2, 2010) (Durkin, J.) (“The rationale for [a policy against ambiguity] 

when considering a project’s conformance with a town or regional plan is rooted in the 

necessary understanding that land use regulations must provide sufficient notice to a property 

owner of the standards by which her land use proposal will be judged.”). 
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Furthermore, the court cannot say as a matter of law that the mapped Flood Hazard 

Area itself is unambiguous. The Plan states that the land use designations, including the Flood 

Hazard Area Overlay, “are non-regulatory and will not affect the ability of a property owner to 

use his or her land. Only zoning or subdivision regulation could have that effect.” Plan at 55. 

This does not put owners of land in the Flood Hazard Area Overlay on notice that new 

commercial development is prohibited on their property. Given these conflicting provisions, 

we cannot say that the Plan unambiguously prohibits new commercial development on the BellGates site. Having found ambiguity in the Plan’s application to this particular parcel, the 

statute directs the court to consider any relevant zoning bylaws. 

Can the Plan be Interpreted using the Village of Jeffersonville Bylaws? 

The only zoning bylaws in effect at or after the time when the pending application was 

filed are the Village of Jeffersonville Flood Hazard Area Zoning Bylaws (“the 1994 Bylaws”) and 

the amended version of those Bylaws, entitled the Inundation Hazard Area Bylaws (“the 2011 

Bylaws”). The Village argues that this Court should use the newer 2011 Bylaws to interpret the 

Plan; Union Bank argues that the 1994 Bylaws apply. However, under the unique facts of this 

case, the Court concludes that it cannot consider either. 

The court cannot use the 2011 Bylaws to interpret the Plan because they were not in 

effect at the time of Union Bank’s application for both the municipal and Act 250 permits. The 

Vermont Supreme Court has held that a town may not “do in the Act 250 process what they 

could not do otherwise, i.e., apply changes in zoning laws retroactively.” Molgano, 163 Vt. at 

32–33. It is undisputed that the 1994 Bylaws, rather than the 2011 Bylaws, govern Union Bank’s 

municipal application. Thus, because the 1994 Bylaws govern the project at the municipal level, 

they would generally be used in the Criterion 10 analysis. 

The language of the statute, however, does not support using the 1994 Bylaws, either. In 

interpreting a municipal or regional plan, Criterion 10 directs the District Environmental 

Commission, and therefore this Court on de novo review, to “consider bylaws, but only to the 

extent that they implement and are consistent with those [Plan] provisions. . . .” 10 V.S.A. 

§ 6086(a)(10) (emphasis added). As the Plan was adopted in 2009, fifteen years after the 

adoption of the 1994 Bylaws, the Court cannot conclude that the 1994 Bylaws implement and 

are consistent with the Plan. The Vermont Supreme Court’s decision in John A. Russell Corp. 

does not change this analysis. There, the Court looked to zoning bylaws that predated the 
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applicable municipal plan only because of “unique circumstances.” In re John A. Russell Corp., 

2003 VT 93, ¶ 21, 176 Vt. 520. In that case, the citizens of the town voted against adopting new 

bylaws evidencing the intent that the old bylaws continue to govern the municipal plan. Id. In 

the absence of such unique circumstances and given the clear language of the statute, this Court 

cannot use the 1994 Bylaws to interpret the Plan. 

Absent any zoning bylaws to aid our interpretation of the Jeffersonville Plan, the Court 

is left to “construe the plan as best it can, based on various rules of construction or supporting 

evidence of municipal legislative intent.” Re: Times and Seasons, LLC and Hubert K. Benoit, 

No. #3W0839-2-EB, Findings of Fact, Concl. of Law, and Order (Altered), at 60. While statutory 

construction is generally a question of law, resolution on summary judgment is inappropriate 

here. The Court finds that further development of the facts at trial is the most appropriate way 

to resolve this ambiguity and apply the Plan to the proposed development.1 See Berlin Dev. 

Assocs. v. Dep’t of Soc. Welfare, 142 Vt. 107, 110 (1982) (noting that for a grant of summary 

judgment one party must be “so clearly correct as to be entitled to a judgment ‘as a matter of 

law’”); see also 10B C. Wright & A. Miller, Federal Practice and Procedure § 2732 (3d ed. 1998) 

(noting that in some “circumstances trial courts occasionally will refuse summary judgment in 

order to develop a complete record for review and to bring disputed issues into sharper focus”). 

For these reasons, we cannot grant summary judgment to either party. We look forward to the 

presentation of evidence at trial, so that we may render a conclusive determination on this legal 

issue. 

Conclusion 

For the reasons stated above, the Village’s motion for summary judgment and Union 

Bank’s cross-motion for summary judgment are DENIED. 

Done at Newfane, Vermont this 30th day of October, 2013. 

 

 Thomas S. Durkin, Environmental Judge 

 

1

 As we have already granted Cross-Appellant Jean Jenkauskas party status with regard to Criterion 1(D) and expect 

a merits hearing on the issue of the Project’s impact on flooding under that Criterion, our determination on 

compliance with the applicable Village Plan provisions regarding floodplain development is also best reserved for 

trial.