1 STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

} In re Highlands Development Co., LLC } and JAM Golf, LLC } Docket No. 194-10-03 Vtec Master Plan Application } }

Decision and Order on Motion for Reconsideration or to Alter or Amend

Appellant-Applicants Highlands Development Co., LLC and JAM Golf, LLC (Applicants) appealed from a decision of the Develo pment Review Board (DRB) of the City of South Burlington, approving 297 of the 357 1 residential dwelling units sought in Applicants’ master plan application for a 450-acre Planned Unit Development. Applicants are represented by Mark G. Hall, Esq. and William A. Fead, Esq.; the City of South Burlington is represented by Amanda S.E. Laff erty, Esq. 2 Applicants previously moved for summary judgment i n this appeal, asking the Court to invalidate several provisions of the 2003 South Burlington Land Development Regulations (2003 Regulations) as being unconstitut ionally vague. 3 The Court issued its decision and order regarding Applicants’ Motion for Summary Judgment on February 2, 2010. In re Highlands Development Co., LLC and JA M Golf, LLC Master Plan

1 Many of these units have already been constructed or approved, leaving 50 units in four development areas at issue in this appeal. In re Highlands Development Co., LLC and JAM Golf, LLC Master Plan Application , No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2, 2010), slip op. at 8; also see footnote 5 for an exp lanation of why the number of units was reduced from 358 to 357.

2 In addition, Marie Ambusk has informational status in this appeal, but has not entered an appearance as a party.

3 In that motion, Applicants sought invalidation of eight provisions of the 2003 Regulations applicable to their master plan applica tion: § 15.18(A)(4), § 15.18(A)(5), § 15.18(A)(6), § 15.18(A)(10), § 15.18(B)(1), § 15.18 (B)(2), § 15.18 (B)(3), and § 15.18 (B)(4).2

Application , No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2, 2010) (t he Summary Judgment Decision). In that decision, the Court granted summary judgmen t in favor of the City with regard to §§ 15.18(A)(5), (A)(6), and (B)(4) in their entirety, and with regard to §§ 15.18(A)(4), (A)(10), and (B)(2) in certain resp ects, determining that those specific provisions were not unconstitutionally vague. Id . at 31. The Court granted summary judgment in favor of Applicants with regard to §§ 1 5.18(B)(1) and (B)(3) in their entirety, and with regard to § 15.18(A)(4) in certai n respects, determining that those specific provisions were unconstitutionally vague. Id . With respect to the remainder of §§ 15.18(A)(4), (A)(10), and (B)(2) the Court denied summary judgment on the basis either that material facts had not been provided to the Court or that resolution of the motion was premature at that time. Id . at 31–32. Applicants moved for reconsideration of the Summar y Judgment Decision under V.R.C.P. 59(e). Applicants ask this Court to recon sider its conclusions regarding those sections on which it ruled in favor of the City or ruled that summary judgment was

premature (§§ 15.18(A)(4), (A)(5), (A)(6), and (A)(10), and §§ 15 .18(B)(2) and (B)(4)), and to conclude that those provisions are unconstitutio nally vague. 4 The briefing schedule was extended at the request of the parties; a furth er extension resulted from the fact that a legible copy of one exhibit was requested by the Court (see note 6 below).

Standard Applicable to a Motion to Alter or Amend a Judgment Although there is no specific authorization in the civil or environmental rules governing a motion to “reconsider” a decision, the c ourt treats such a motion as one to

4 Applicants also ask this Court to conclude that § 15.18(B)(3) is unconstitutionally vague based on the South Burlington Open Space Stra tegy. However, as the Court has already granted summary judgment to Applicants that “§ 15.18(B)(3) is too vague to be applied by the court to the contested development a reas,” id . at 19, it is unnecessary to reach this additional argument for its vagueness.3

alter or amend a judgment under V.R.C.P. 59(e). In re Appeal of Berezniak , No. 171-9- 03 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.). Vermont Rule of Civil Procedure 59(e), which is substantially identical to Federal Rule 59(e), “gives the court broad power to alter or amend a judgment on motion. ” Drumheller v. Drumheller , 2009 VT 23, ¶ 28 (quoting V.R.C.P. 59, Reporter's Not es). Rule 59(e) is a codification of the trial court's “inherent power to open and corre ct, modify, or vacate its judgments.”

Id . (citing West v. West , 131 Vt. 621, 623 (1973)). 5 A Rule 59(e) motion “allows the trial court to rev ise its initial judgment if necessary to relieve a party against the unjust ope ration of the record resulting from the

mistake or inadvertence of the court and not the fa ult or neglect of a party.” Rubin v. Sterling Enterprises, Inc. , 164 Vt. 582, 588 (1996) (citing In re Kostenblatt , 161 Vt. 292, 302 (1994)). The limited functions of a motion for reconsideration are “to correct

manifest errors of law or fact on which the decisio n was based, to allow the moving party to present newly discovered or previously una vailable evidence, to prevent manifest injustice, or to respond to an intervening change in the controlling law.” In re Vanishing Brook Subdivision , No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. J uly 10, 2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure: Civil § 2810.1 (2d ed. 1995)); see also Appeal of V an Nostrand , Nos. 209-11-04 & 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11 , 2006) (Durkin, J.). A motion for reconsideration should not be used to “relitigate o ld matters” or “raise arguments or

5 The Court considers motions for reconsideration o r to alter or amend orders resulting from pretrial motions under its “inherent powers to reconsider interim decisions[] so as to avoid error or manifest injustice.” In re Mastel li Constr. Application , No. 220-10-07 Vtec, slip op. at 1 (Vt. Envtl. Ct. Nov. 14, 2008) (D urkin, J.), aff’d , Supreme Ct. No. 2009- 072 (Sept 4, 2009) (unpub. Mem.); see also In re Sis ters & Bros. Inv. Group, LLP , No. 106- 5-06 Vtec, slip op. at 1–2, n.1 (Vt. Envtl. Ct. June 27, 2007) (Durkin, J.), aff’d , 2009 VT 58 (stating that “the more appropriate discretionary e xercise” with such a motion “is to review it as a more general reconsideration request ”)(citing Morrisville Lumber Co. v. Okcuoglu , 148 Vt. 180, 182 (1987).4

present evidence that could have been raised prior to entry of the judgment.” Id

. Similarly, mere disagreement between the moving part y and the court is not grounds

for reconsideration. In re Boutin PRD Amendment , No. 93-4-06 Vtec, slip op. at 1–2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.).

Applicable Principles of Statutory Construction In general, as stated in the Summary Judgment Decis ion, courts are directed to approach regulatory construction in the same manner as statutory interpretation. In re Williston Inn Group , 2008 VT 47, ¶ 14, 183 Vt. 621. In the present case , the Court must apply at least two principles of statutory construc tion. Applicants argue that the two principles conflict, and that one should take preced ence over the other. The first principle of statutory construction appl icable to this case is that the Court should construe the 2003 Regulations “to avoi d constitutional difficulties, if possible,” In re G.T. , 170 Vt. 507, 517 (2000), because a court should “not decide constitutional questions unnecessarily.” In re Pic ket Fence Preview , 173 Vt. 369, 375 (2002) (citing State v. Clarke , 145 Vt. 547, 551 (1985)). Even if “constitutional issues have been argued and briefed, they will not be considered by [the] Court unless disposition of the case requires it.” State v. Patnaude , 140 Vt. 361, 368 (1981) (citing In re Wildlife

Wonderland, Inc. , 133 Vt. 507, 520 (1975)). Therefore, as the Court s tated in the Summary Judgment Decision, “where a reasonable alter native for resolution exists, the court will avoid overturning a regulation on consti tutional grounds.” Summary Judgment Decision at 14 (citing Central Vt. Ry., Inc. v. Dep’t of Tax es , 144 Vt. 601, 604 (1984)). This presumption of constitutionality, whi ch is well established under Vermont law, applies when a court analyzes a constitutional challenge to any type of statute or regulation, not just to land use laws. Another principle of statutory construction, speci fic to land use regulation, establishes that “[b]ecause land use regulation is in derogation of the common law, any5

ambiguity is resolved in favor of the landowner.” In re Bennington School, Inc. , 2004 VT 6, ¶ 12, 176 Vt. 584 (quoting In re Miserocchi , 170 Vt. 320, 324 (2000)). See also, e.g., Kremer v. Lawyers Title Ins. Corp. , 2004 VT 91, ¶ 8, 177 Vt. 553 (citing In re Vitale , 151 Vt. 580, 584 (1989)); Appeal of Weeks , 167 Vt. 551, 555 (1998). In the present appeal, if the Court determines that the 2003 Regulations are ambiguous, it must resolve the ambiguity in favor of Applicants. These two principles of regulatory construction do not necessarily conflict with one another, nor are they necessarily mutually exclu sive in practice. Applicants argue that the Court applied the presumption of constitut ionality at the expense of the principle that ambiguities are to be resolved in fa vor of the landowner, claiming that the latter is the “most important statutory-interpretat ion canon applicable to interpreting land-use regulations.” Applicants’ Motion for Reco nsideration, at 1 (Mar. 5, 2010) [hereinafter Motion for Reconsideration]. However, t o the extent possible, the Court considers both principles when analyzing any contes ted regulations.

Section 15.18(A)(4) of the 2003 Regulations Section 15.18(A)(4) of the 2003 Regulations require s that: The project’s design respects and will provide suit able protection to wetlands, streams, wildlife habitat as identified in the Open Space Strategy, and any unique natural features on the site. In making this finding the DRB shall utilize the provisions of Art icle 12 of these Regulations related to the wetlands and stream buff ers, and may seek comment from the Natural Resources Committee with r espect to the project’s impact on natural resources. In the Summary Judgment Decision, the Court held t hat this section was unconstitutionally vague as it related to “unique n atural features,” but held that it was

constitutional as it related to “wetlands” and “str eams” because of the reference to Article 12 of the 2003 Regulations. Summary Judgme nt Decision at 18. With respect to

“wildlife habitat,” however, the Court determined tha t “material facts [were] in dispute,6

or at least ha[d] not been provided to the Court, to allow the Court to determine whether the Open Space Strategy identifies the ‘wil dlife habitat’ that must be protected and defines what level of protection of wildlife ha bitat is ‘suitable’ in this location,” as the parties had not provided a copy of the Open Spa ce Strategy. Id . at 18–19. The Court has now been provided with a legible cop y of the Open Space Strategy, an undisputed exhibit that had not previou sly been provided. 6 In the current motion, Applicants essentially renew their motion fo r summary judgment with regard to § 15.18(A)(4), only as it relates to protection of “wildlife habitat,” on the basis of this newly-provided exhibit. In order to be upheld as it relates to “wildlife h abitat,” § 15.18(A)(4), considered together with the Open Space Strategy, must provide sufficient standards for the Court to apply, first, in identifying what “wildlife habi tat” is to be protected, and, second, in determining whether the project “respects and will provide suitable protection to” that wildlife habitat. Although the Open Space Strategy does specifically identify and map some wildlife “sightings” and wildlife “corridors” in South Burlington, see Open Space Strategy, at 16–23 (involving “Public Resource Mappi ng” and the “Natural and Built Resource Inventory”), neither the strategy nor the regulation provides standards for the DRB or this Court to determine when a “project’s de sign respects and will provide suitable protection to” any of the identified wildl ife habitats, or, indeed, how to tell how much protection is “suitable.” Thus, even consideri ng the Open Space Strategy as having been incorporated by reference 7 in § 15.18(A)(4), that section as it relates to

6 A photocopied version of this 2002 document, with an illegible legend on each map page, was provided with the memoranda on the present motion; at the request of the Court, a legible copy of the document was filed with the Court on June 17, 2010.

7 In addition, the paragraph describing “Wildlife Si ghtings and Corridors” on page 19 of the Open Space Strategy refers the reader for “m ore detailed information” to yet another document that has not been provided to the Court: “Where the Wild Things7

“wildlife habitat” does not articulate standards sp ecific enough to guide decisionmakers and applicants in analyzing a propos al. Therefore, § 15.18(A)(4) as it relates to “wildlife habitat” is unconstitutionally vague and unenforceable.

Section 15.18(A)(5) of the 2003 Regulations Section 15.18(A)(5) of the 2003 Regulations requir es that: The project is designed to be visually compatible w ith the planned development patterns in the area, as specified in th e Comprehensive Plan and the purposes of the zoning district(s) in which it is located. As stated in the Summary Judgment Decision, in orde r for § 15.18(A)(5) to be upheld it must lay out “sufficient standards for th e Court to apply, first, to identify what the ‘planned development patterns’ are in the area by looking to the [Comprehensive] Plan and the purposes of the zoning district, and, second, to determine whether the proposed project will be ‘vis ually compatible’ with those planned development patterns.” Summary Judgment De cision at 21. In the present motion, Applicants do not seek reconsideration of th e Court’s conclusion that the purpose statement found in § 9.1 of the 2003 Regula tions, along with Chapter VII of the Comprehensive Plan, were specific enough to define the “planned development patterns” of the area. Id . at 21–23. In the Summary Judgment Decision at 24, the Court d etermined that the standard stated in § 15.18(A)(5) requiring the proj ect to be “visually compatible” with the planned development patterns in the area is a s ufficient standard to guide the reviewing body and is not impermissibly vague. Alt hough this is a municipal application rather than one under Act 250, 10 V.S.A. ch. 151, and although expert testimony may be required on visual compatibility, t he Court ruled that the “visually

Are: Large Mammal Habitats and Corridors in South B urlington, Vermont,” apparently published by the Winooski Valley Park District.8

compatible” component of § 15.18(A)(5) could be ana lyzed in the context of the first prong of the so-called Quechee Lakes test. First articulated by In re Quechee Lakes Corp. , Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fac t, Concl. of Law, & Order, at 18–20 (Vt. Envtl. Bd. Nov. 4, 1985), this test “gu ides a reviewing body in determining a project’s compatibility with the surrounding area by asking: ‘Will the proposed project be in harmony with its surroundings—will it “fit” the context in which it will be located.’” Summary Judgment Decision at 24. The C ourt concluded that the “historical usage” of the first prong of the Quechee Lakes test “provides adequate guidance to a reviewing body in applying § 15.18(A)(5).” Id . Applicants seek reconsideration of the concept that the first prong of the Quechee Lakes test can be used to provide guidance when applying the “visually compatible” component o f § 15.18(A)(5). Motion for

Reconsideration, at 16–17. Applicants argue that the “compatibility” standards found within the first prong of the Quechee Lakes test have “vitality . . . only in conjunction with six other subcriteria for just making the determination as to whether the impact of development is adverse.” They argue that the “compatibility” c omponent of the Quechee Lakes test is not a “standard unto itself” that may be used un der § 15.18(A)(5). Motion for

Reconsideration at 16. The Court did not intend to suggest that the compatibility component of the Quechee Lakes test should be applied directly to this municipal decision. Rather, the existence of the Quechee Lake s compatibility analysis, already well-established by the time the 2003 Regulations w ere adopted, shows that visual compatibility is a concept that can be applied by t he decisionmaker, even if expert evidence is necessary for that purpose. Thus, when applied in light of the guidance offered by the history of Quechee Lakes analysis, and expecting expert evidence on vis ual compatibility to assist the Court, § 15.18(A)(5) is not unconstitutionally vague and unenforceable. Applicants’ motion to reconsider is denied as to § 15.18(A)(5).9

Section 15.18(A)(10) of the 2003 Regulations Section 15.18(A)(10) of the 2003 Regulations requi res that the project be “consistent with the goals and objectives of the Co mprehensive Plan for the affected district(s),” in the present case, the Southeast Qua drant. Applicants first argue that § 15.18(A)(10) is unen forceable because “the Vermont Supreme Court has already held that the applicable [Comprehensive] Plan is unenforceable.” Motion for Reconsideration, at 8 (c iting In re Appeal of JAM Golf, LLC , 2008 VT 110, ¶ 18, 185 Vt. 201). This argument over states the Supreme Court’s holding as to the South Burlington Comprehensive Plan in Ap peal of JAM Golf

. 8 In that case, it is essential to note that the Vermont Supreme Court first concluded that municipalities do have authority to require proposed projects “to conform to their city plan” as long as there is a “specific policy set forth in the plan,” and that policy is “stated in language that is clear and unqualified, and creates no ambigu ity.” Appeal of JAM Golf , 2008 VT 110, ¶¶ 16-19 (quoting In re John A. Russell Corp. , 2003 VT 93, ¶ 16, 176 Vt. 520). See also, e.g., 24 V.S.A. § 4414(3)(A)(ii) (defining the character of an area, for the purposes of conditional use approval, by the “specifically state d policies and standards of the municipal plan” (emphasis added)). Thus, the City ha d authority to enact § 15.18(A)(10); the issue for analysis is instead w hether the Comprehensive Plan is sufficiently specific and unambiguous as to any app licable goal or objective. In analyzing municipal regulations that require co nformance with a municipal plan such as the South Burlington Comprehensive Pla n, the Supreme Court has declined to apply any provision of the plan that “s ets forth an abstract policy . . . but provides no specific standards to enforce the polic y, or is at best, ambiguous and in conflict with applicable zoning provisions.” John A. Russell Corp. , 2003 VT 93, ¶ 17

8 Although the City adopted a revised Comprehensive Plan in 2006, the master plan application that is the subject of the present appe al is to be reviewed under the 2001 Comprehensive Plan, the same Comprehensive Plan at i ssue in Appeal of JAM Golf

.10

(internal citations and quotations omitted). See also, e.g., A ppeal of JAM Golf , 2008 VT 110, ¶ 17 (“[C]ity authorities may not deny permissi on for a project when there is not a ‘specific policy set forth in the plan.’” (quoting John A. Russell Corp. , 2003 VT 93, ¶ 16). Based on this reasoning, in Appeal of JAM Golf the Supreme Court concluded that certain “aspects” of the Comprehensive Plan were “t oo ambiguous to be enforceable.”

Id . at ¶¶ 18–19. Specifically, the Court held that th e provisions of the Comprehensive Plan requiring proposed projects to “protect wildli fe corridors and habitat” and “protect scenic views,” in combination with the pla n’s “general policy of promoting growth and residential development in the Quadrant,” were vague and unenforceable as applied to the Taft Subdivision development area under the 2002 Regulations. Id

. On the other hand, the Supreme Court did not hold t hat the Comprehensive Plan as a whole was unconstitutionally vague and unenfor ceable, and did not conduct a constitutional analysis regarding any other provisi ons of the Comprehensive Plan as no other provisions were at issue in that appeal. Acc ordingly, it is appropriate for this Court to consider other aspects of the Comprehensiv e Plan, not specifically struck down by the Supreme Court in Appeal of JAM Golf , as applied to the four development areas at issue in the present master plan application. I t is also appropriate for this Court to limit its analysis to only those provisions of the Comprehensive Plan that are specifically at issue in the present appeal, just as the Supreme Court limited its analysis in Appeal of JAM Golf

. 9

9 As this Court discussed in the Summary Judgment D ecision at 28, to pronounce on the constitutionality of the 2001 Comprehensive Pla n as a whole, or on any other provisions of the Comprehensive Plan not at issue r egarding Applicants’ master plan application, would require the Court to rule on an u nnecessary constitutional issue and would constitute an improperly advisory opinion. S ee In re Picket Fence Preview , 173 Vt. 369, 375 (2002) (stating that courts should “not decide constitutional questions unnecessarily”)(citing Clarke , 145 Vt. at 551). See also State v. Patnaude , 140 Vt. 361, 368 (1981) (stating that constitutional issues “wil l not be considered by this Court unless disposition of the case requires it”) (citing Wildl ife Wonderland , 133 Vt. at 520).11

Applicants also incorrectly characterized the Summ ary Judgment Decision as having “affirmed the DRB’s conclusion that the ‘west-to-east layout ’ proposed by the

Heatherfields/Lot 108 area and the ‘installation of road infrastructure across this area directly contradicts the Comprehensive Plan.’” Mot ion for Reconsideration, at 8 (emphasis added). To the contrary, in the Summary Judgment Decision, the Court did not even reach the merits of the application under § 15.18(A)(10), much less “affirm” any of the DRB’s conclusions. 10 Rather, the Court only reached the issue of wheth er the specific goals and objectives of the Comprehensive Plan for the Southeast Quadrant relating to the lot layout and road infrastructure of the Heatherfields/Lot 108 area were specific enough to withstand a constitutional chall enge. All the Court concluded was that the Comprehensive Plan provisions were suffici ently specific to be applied to the lot layout and road infrastructure of the Heatherfi elds/Lot 108 area on the merits of the master plan application. Summary Judgment Decision at 29. The Court did not reach a decision on the merits of the master plan applicati on under § 15.18(A)(10) or any other provision of the 2003 Zoning Regulations. The issu e of whether the master plan application, as to the lot layout and road infrastru cture of the Heatherfields/Lot 108 area, is “consistent with the goals and objectives of the Comprehensive Plan for the [Southeast Quadrant] district” will be determined w hen the Court considers the merits of the application. Further, as discussed in the S ummary Judgment Decision, “[i]f any

10 In any event, by statute and rule, Applicants’ appe al in this Court is de novo

. V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). The Court do es not review the DRB decision and does not affirm (or reverse) any of its conclusions . Rather, the Court applies “the substantive standards that were applicable before t he tribunal appealed from” and reaches an independent decision on the merits of th ose aspects of the master plan application raised by the Statement of Questions. 1 0 V.S.A. § 8504(h); V.R.E.C.P. 5(g). In a de novo appeal such as this one, the Court “hear[s] the ev idence anew ‘as if it had not been heard before and as if no decision had been pr eviously rendered.’” In re Godnick Family Trust Permit & Variance Application , No. 52-4-09 Vtec, slip op. at 5 (Vt. Envtl. Ct. Jan. 6, 2010) (Durkin, J.) (quoting State v. Madi son , 163 Vt. 360, 370 (1995)).12

other elements of the goals and objectives of the C omprehensive Plan for the Southeast Quadrant are sought to be applied by the City to th e merits of any of the four contested development areas, the constitutional vagueness anal ysis [of § 15.18(A)(10)] will have to be addressed, as applied, at that time. Summary Judgm ent Decision at 30. Therefore, Applicants’ motion to reconsider is deni ed as to § 15.18(A)(10).

Section 15.18(B)(2) of the 2003 Regulations Section 15.18(B)(2) of the 2003 Regulations requir es that: Building lots, streets and other structures shall be located in a manner that maximizes the protection of open character, natural areas, and scenic views of the Quadrant identified in the Comprehensi ve Plan, while allowing carefully planned development at the overa ll base densities provided in these Regulations. As the Court stated in the Summary Judgment Decisi on at 25, in order for § 15.18(B)(2) to survive constitutional scrutiny, it must provide sufficient standards for the Court to apply to determine what open character , natural areas, or scenic views of the Southeast Quadrant are identified in the Compre hensive Plan. It also must provide

sufficient standards to allow the Court to determin e whether the lot layout, that is, the location of building lots, streets, and other structu res, “maximizes the protection” of those listed features.” However, to avoid reaching an unnecessary constitutional question, the Court declined to rule on summary judg ment as to the constitutionality of § 15.18(B)(2), until or unless the protection of “op en character,” “natural areas” or “scenic views” would actually be argued to be appli cable to the merits of any of the four contested development areas. Id . at 25–26. In the present motion, Applicants reiterate their argument that § 15.18(B)(2) should be struck down as unconstitutionally vague o n its face. Applicants continue to disagree that the term “maximize” can ever be suffi ciently definite to establish a required degree of protection.”13

The Court has fully considered this argument and declines to alter its decision to refrain from ruling on the constitutionality of § 1 5.18(B)(2) on its face, because neither party appears to claim that § 15.18(B)(2) is applic able to the merits of any of the four contested development areas. Unless and until the features listed in § 15.18(B)(2)—as to the “open character,” “natural areas” or “scenic vie ws” of one of the contested development areas—are applicable to the Court’s con sideration of the master plan application as to the four contested development ar eas, the Court declines to rule on the constitutionality of that provision. See note 9, ab ove. Accordingly, Applicants’ motion to reconsider is denied as to § 15.18(B)(2).

Sections 15.18(A)(6) & 15.18(B)(4) of the 2003 Regu lations Section 15.18(A)(6) of the 2003 Regulations requir es that: Open space areas on the site have been located in such a way as to maximize opportunities for creating contiguous open spaces between adjoining parcels and/or stream buffer areas.

Section 15.18(B)(4) of the 2003 Regulations requi res that: Consistent with [§ 15.18(B)(1) through (3)], dedicat ed open spaces shall be designed and located to maximize the potential for combination with other open spaces on adjacent properties.

In the Summary Judgment Decision, the Court charact erized both of these sections as “focus[ing] on preserving the potential for creating contiguity of open space on the project property with open space on adjacent property,” and distinguished them from the quite different issue of “convenient alloc ation and distribution of common open space” struck down in Appeal of JAM Golf, LLC , No. 69-3-02 Vtec, slip op. at 5-6 (Vt. Envtl. Ct. June 12, 2009). Summary Judgment Dec ision at 19. The Court has reviewed the parties’ arguments and the reasoning of the Summary Judgment Decision, and declines to change th e Summary Judgment Decision as to §§ 15.18(A)(6) and (B)(4) of the 2003 Regulat ions. The Court is able to determine14

from the plain language of these sections that the resource to be protected is the potential or opportunity for making any open space on the project property continuous with open space, including stream buffers, existing o n adjacent property. The Court is also able to determine from the plain language of t hese sections that the degree of protection is to “maximize” that potential, that is , to ensure to the greatest extent possible that development and open space on the sit e are located so as to avoid blocking the future opportunity to link such open space with open space existing on adjacent

property.

The Court therefore declines to alter its conclus ion that §§ 15.18(A)(6) and (B)(4) are sufficiently definite to be applied by the Cour t to the contested development areas.

Accordingly, based on the foregoing, it is hereby OR DERED and ADJUDGED that Applicants’ Motion for Reconsideration or to A lter or Amend is Granted as to § 15.18(A)(4) with respect to “wildlife corridors,” as discussed above, and is otherwise denied. A telephone conference has been scheduled (see enclosed notice) to discuss the issues that remain in this appeal after the resolut ion of the motions, to discuss whether mediation of any of those issues might now be appro priate, and to discuss the scheduling of this matter for trial.

Done at Berlin, Vermont, this 21st day of September, 2010.

________________________________________________ _ Merideth Wright Environmental Judge