STATE OF VERMONT

ENVIRONMENTAL COURT

Appeal of Doyle, et al. }

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Docket No. 100-5-02 Vtec

Decision and Order

 Appellant Richard Doyle and eighteen other residents of Thompson and Orion Avenues 

appealed1from a decision of the Development Review Board (DRB) of the Village of Ludlow, 

granting conditional use approval to the Ballard-Hobart Post #36 of the American Legion 

(Appellee-Applicant) for a private club building to be located at 81 High Street. The appeal from 

this decision is an on-the-record appeal as the Town has adopted and implemented2the 

procedures necessary for such appeals. Keith O. Arlund, Appellee-Applicant= s > post judge 

advocate,= participated in the appeal for Appellee-Applicant. The Village, represented by J. 

Christopher Callahan, Esq., entered an appearance but did not participate in the briefing of this 

matter. 

 The record was received by the Court, including audio tapes of the DRB meetings held on 

December 17, 2001, January 21, 2002 and February 11, 2002, and minutes of the January 21, 

2002 and February 11, 2002 DRB meetings. No reason was given why the December 2001 

minutes were unavailable or not provided. No party requested that any portion of the hearings be 

transcribed; the Court listened all the way through all three audio tapes. It also appears that the 

record does not include the original site plans and other documents, but instead contains 

composite photocopies of the site plan, building plan, and building elevations. No plan was 

provided showing the topography of the site or the roadway, although the witnesses at the 

hearings referred to the > upper= and > lower= portion of the site and referred to the road as 

being steep. None of the parties provided the Court with the Zoning Regulations; accordingly, the 

Court will use a copy of the 1990 Zoning Regulations from another case file, as the Zoning 

Administrator has informed the Clerk of the Court that they have not been amended since that 

date. Any party objecting to the Court= s use of the 1990 Zoning Regulations shall make that 

objection known to the Court in writing on or before ten days from the issuance of this decision.

 The parties were given the opportunity to submit written memoranda of law and declined to 

present oral argument. Upon consideration of the record and the parties= memoranda, the Court 

concludes as follows. The factual findings of the administrative body are not conclusive, but they 

are given great weight. The Court must determine if substantial evidence exists in the record as a 

whole from which the factual findings of the DRB might reasonably be inferred.

 The property is a 2.65-acre parcel located in the Village Residential zoning district, east of the 

Black River. The parcel is owned by the State of Vermont and was previously used as a state 

highway garage; the garage buildings appear to have been removed (See January 22, 2002 

minutes, paragraph 35). Appellee-Applicant proposes to build a new building on the parcel, with 

associated driveways and parking lots. The building has a footprint of 8,150 square feet (as 

marked on the building plans), and a floor area of 15,964 square feet (as described in the DRB 

decision).

 The parcel forms a trapezoid in shape and has a street address of 81 High Street. Its long 

westerly side fronts Dug Road and High Street, including the angled intersection at which 

Prospect Street merges with High Street. Although not marked as such on any plans, Dug Road 
is a one-way road downhill to a bridge over the Black River, where it connects with Route 103 

(Pond Street), the main road running through the area. The parcel abuts several residential 

properties to the east and southeast, including those of Appellants Doyle, Agan, Goings, and 

Radonis; those and other nearby residential properties have access via High Street along 

Thompson Avenue and Orion Avenue, residential streets in the neighborhood to the east and 

south of the parcel. The parcel is bounded on the north by lands of Okemo Mountain, Inc.

 In the present proceeding, Appellee-Applicant has applied for conditional use approval3under 

the use category of > private club= to construct a new American Legion Hall on the northerly end 

of the parcel, with its associated driveways and parking areas on the remainder of the parcel. The 

building is proposed to have a wider central section containing a vestibule, lobby, coat rooms, 

rest rooms, kitchen, and associated facilities; a westerly section containing a lounge/bar with 40 

seats at tables and 23 seats at a horseshoe-shaped bar, a game room and offices; and an 

easterly section designed as a banquet or function hall accommodating 200 people in seats, 

banquet tables, and on a stage or dais at the easterly end of the room. The central and westerly 

sections are proposed to be built over a large basement which is designated on the plans for >

storage.= The westerly section with the lounge tables has a door opening onto a patio showing 

outdoor tables4in addition to the 63 indoor seats associated with the lounge/bar use. The easterly 

banquet hall section is proposed to be built on a slab foundation.

 Appellee-Applicant proposes that the main driveway access both into and out from the facility 

will be located on High Street close to the southwesterly boundary of the property, adjoining the 

Radonis residential property, at the location of the access for the former state garage. AppelleeApplicant also proposes a service drive extending around the east and north sides of the building 

with access onto Dug Road at the northwesterly corner of the parcel, but prefers not to have to 

use that as a required exit onto Dug Road for late night events, unless required to do so by the 

DRB. 

 No traffic engineering evidence was presented at all, either by Appellee-Applicant or by the 

neighbors. There was testimony from the neighbors and from the Chief of Police that the volume 

of traffic would necessarily increase dramatically, and that there are safety problems due to the 

narrowness of High Street southerly of the site and the speed of traffic approaching Dug Road 

from High Street. The Chief of Police also recommended that the DRB require Appellee-Applicant 

to provide a police officer for security and to direct traffic for any large gathering held at the 

facility. Although the DRB found that Appellee-Applicant would notify the police department (see 

footnote 5, below), it did not require as a condition that an officer be hired at the expense of 

Appellee-Applicant to police the flow of traffic for any large gathering. The DRB made no findings5

as to the effect of the proposal on either the safety or the volume of traffic on the roads and 

streets in the vicinity. The DRB imposed a condition that the southwesterly access be used as an 

entrance only, and that a A no exit@ sign be installed, but did not require its geometry to be 

redesigned to make it more difficult to exit from that location, and did not require any change in its 

location to improve its visibility or safety with respect to the Prospect Street intersection or the 

traffic along High Street. The DRB imposed a condition that the northwesterly access be used as 

an exit only, and did require that its geometry be redesigned to prevent exiting vehicles from 

making an illegal left turn onto Dug Road, and that a one-way sign be installed at the exit. 

Because site plan review has not yet occurred, there has been no review of the adequacy of 

design of the on-site circulation or the adequacy of the location of the access points onto High 

Street/Dug Road.

 Appellee-Applicant proposes a hedge of unspecified6height and vegetation type along most of 

the easterly and southeasterly border with the residential properties, with a gap of approximately 

30 feet (by scale from the photocopied site plan) in the center of the Agan property to 

accommodate a corner of the proposed parking lot. Between the entrance drive and the building, 

Appellee-Applicant proposes a large parking lot containing 61 regular parking spaces and four 

parking spaces for persons with disabilities. Appellee-Applicant proposes that this lot will be lit by 
six pole-mounted lights of unspecified7

heights, fixture-types or wattage. One of these lights is 

located approximately five feet (by scale from the photocopied site plan) from the Agan property 

boundary, with no screening at all proposed between the light and the Agan property. Near and to 

the south of the easterly end of the building Appellee-Applicant proposes an additional seven 

parking spaces, for a total of 72 designated spaces. Around the building to its north, near the exit 

driveway of the service drive, Appellee-Applicant has designated an additional parking area with 

an undefined number of spaces as > extra parking.= The DRB made no findings as to the 

character of the neighborhood or the effect of a large parking lot and its attendant noise, fumes 

and lighting on the adjacent residential properties8. The DRB imposed a condition that 80 parking 

spaces were required, including 4 spaces for persons with disabilities. Section 630.2(a) appears 

to require one or two loading or delivery spaces in addition to the other required spaces, but the 

DRB made no mention of loading spaces.

 Appellee-Applicant made no specific proposals for hours of operation or frequency of use of 

the hall for large functions (other than as allowed under its state liquor license which was not put 

into evidence but which was referred to as allowing liquor sales to 2 a.m.), except that Mr. 

Steeves stated at the February 2002 hearing that Appellee-Applicant= s practice was to close by 

1 a.m. and that most weddings were scheduled for the afternoon and were over by 9 or 10 p.m. 

The DRB made no findings as to the frequency or effect of the use of the hall for large functions, 

in relation to the effect of the proposal on the character of the neighborhood. The DRB imposed 

conditions that the A renting of the hall@ for such large functions A can be done once every three 

weeks,@ without limiting those functions as to weekend days rather than weekdays, and A will 

require occupants to be done by 11:00 p.m.,@ without specifying whether they would be required 

to have left the property by that time. The DRB imposed a condition that the clubhouse may be 

open until 1 a.m. Appellee-Applicant made no specific proposals regarding the use of the outdoor 

areas on the property, nor regarding the use of music or amplification outdoors, except for Mr. 

Steeves= statement at the January 2002 hearing that the building would be air conditioned and 

his suggestion that therefore all functions would take place inside the building. The DRB made no 

findings and imposed no conditions related to outdoor use, music or amplification outdoors on the 

property.

 In an on-the-record appeal, the factual findings of the administrative body are given great 

weight, although they are not conclusive. The Court must determine if substantial evidence exists 

in the record as a whole from which the factual findings of the DRB might reasonably be inferred. 

See, In re Petition of Town of Sherburne, 154 Vt. 596, 604-05 (1990); Appeal of Lussier and Noe, 

Docket No. 116-5-02 (Vt Envtl. Ct., Sept 16, 2002). If there is conflicting evidence, the DRB is the 

body charged with weighing this evidence, and the Court will not disturb its factual findings if 

supported by substantial evidence in the record as a whole.

Use Category as > Private Club=

 The facility= s proposed use is as a private club, allowed in this zoning district if approved as a 

conditional use. ' 520. The question of what limitations on use qualify a proposal for consideration 

as a > private club= is a legal question, not a factual question. It is governed by the definition of >

private club= in the Zoning Regulations, not by the state liquor control program. The definition in 

Article 2 of the Zoning Regulations defines a private club as a A [b]uilding or use catering 

exclusively to club members and their guests for recreational purposes and not operated for 

profit.@ Emphasis added. In order to be considered for approval as a conditional use in this 

district, Appellee-Applicant must remain within this definition, which means that the banquet hall 

cannot be rented for profit to anyone, including members, and cannot be used by non-member 

groups or non-profit or for-profit organizations, even if the space is donated by AppelleeApplicant. Appellee-Applicant seems to have recognized this restriction part way through the 

application process, and submitted a letter on February 11, 2002, informing the DRB that A the 

proposed banquet hall included in this project will be available only to members of our 

organization or immediate family members.@ Appellee-Applicant must keep its operations within 
the definition of > private club,= and neither the DRB nor this Court has any authority under the 

regulations to alter the requirements of that definition.

Conditional Use Criteria

 To approve a conditional use the DRB must make findings from the evidence regarding the 

effect of the proposal on all four of the following criteria: 1) the capacity of existing and planned 

community facilities; 2) the character of the area affected; 3) traffic on roads and streets in the 

vicinity; and 4) bylaws then in effect. ' 360. The DRB may attach reasonable conditions as 

necessary to implement the ordinance. The DRB made adequate findings from substantial 

evidence in the record that the proposed use will not adversely affect the capacity of existing and 

planned community facilities. We take each of the other criteria in turn.

Character of the neighborhood

 The DRB= s findings are entirely inadequate on this criterion, nor is there substantial evidence 

in the record to support a conclusion that the character of the residential area to the southeast of 

the proposal will not be adversely affected by the project as proposed. The DRB made no 

photographic or written record of its observations during the site visit, nor are there any 

photographs of the surrounding area in the record. The DRB made no factual findings regarding 

what is the extent or the character of the area potentially affected by this project, nor on how the 

project might affect or be compatible with the character of the area. The five DRB findings under 

this heading (see footnote 8, above) fail to describe the character of the neighborhood and fail to 

make any factual statement about the effect of this proposal on that character. It is entirely 

possible that there was evidence from the site visit that would have allowed the DRB to make 

these findings, but the DRB did not do so. The only evidence on the character of the 

neighborhood or on the effect of the project on that character found in the record available to the 

Court for review (in the audio tapes of the three hearings and the documents submitted to the 

DRB at those hearings) supports Appellants= position that the project, and especially the 

potential for an unlimited number of large, late night events and outdoor noise and lighting, would 

adversely affect the character of the neighborhood, unless appropriate conditions were imposed 

to limit these adverse effects.

Traffic on roads and streets in the vicinity

 The DRB= s findings are entirely inadequate on this criterion, nor is there substantial evidence 

in the record to support a conclusion that traffic passing by on the adjacent roads and streets will 

not be adversely affected by the project as proposed. The DRB made no factual findings 

regarding what the current level of traffic is on the roads and streets in the vicinity of the project, 

nor on what traffic can be expected to be generated by the project, nor on its effect on the traffic 

on the roads and streets in the vicinity. The four DRB findings under this heading (see footnote 5, 

above) fail to describe the traffic to be generated by the project and fail to make any factual 

statement about the effect of that traffic on the safety or the volume of the traffic in the vicinity. It 

is entirely possible that there was evidence that could have been submitted by AppelleeApplicant= s engineer that would have allowed the DRB to make these findings, but AppelleeApplicant did not submit any traffic evidence and the DRB did not make such findings. The only 

evidence on the traffic existing on the nearby roads available to the Court for review (in the audio 

tapes of the three hearings and the documents submitted to the DRB at those hearings, including 

the Chief of Police= s testimony and letter) supports Appellants= position that the project will 

generate substantial traffic during large events, that High Street is narrow, that traffic from High 

Street to Dug Road often drives too fast for conditions, that the location of the southwesterly 

access may conflict with traffic on High Street, and that the traffic from the project would 

adversely affect the traffic on streets in the vicinity, unless appropriate conditions were imposed 

to limit these adverse effects. The DRB does appear to have adopted the traffic 
recommendations of the Chief of Police as conditions of the approval (see conditions 3, 8, and 

16), but made no findings on this criterion. 

Bylaws then in effect

 Because the project has not yet obtained site plan approval, it is difficult for the DRB or this 

Court to determine if it is in compliance with the requirements of ' 380.2 of the Zoning Regulations 

as to on-site circulation, access to the adjacent streets, parking and loading, screening and 

lighting, and in particular whether the project has achieved A maximum compatibility and 

protection to adjacent property@ as required by ' 380.2(3). The DRB made only five > findings=

under the compliance-with-the-regulations criterion: that the parcel is within the Village 

Residential district, that > private club house= is a conditional use for that district, and that the 

project meets the setbacks, building height, and coverage requirements of the regulations. The 

DRB= s findings are entirely inadequate on this criterion as it relates to the proposal= s 

compliance with ' 380.2, nor is there substantial evidence in the record to support a conclusion 

that the project as proposed meets ' 380.2. It is also unclear from the evidence whether the 80 

required parking spaces have been or can be provided, whether a loading space is required, or 

whether the proposal meets the performance standards of ' 650.4 of the Zoning Regulations.

 Based on the foregoing, it is hereby ORDERED and ADJUDGED the decision of the DRB 

granting conditional use approval of the property at 81 High Street for a private club is hereby 

vacated and remanded for further findings or further proceedings before the DRB, because the 

DRB failed to make any factual findings regarding the effect of the project design or the traffic 

generated by the project on the roads and streets in the vicinity of the project, failed to make any 

factual findings regarding the effect of the project on the character of the area, and failed to make 

any factual findings regarding compliance with ' 380.2.

 However, because this is an on-the-record appeal, we must note that the DRB is free to make 

such findings if they can be drawn from the evidence in the record, and is free to hold a 

supplementary hearing to take any additional evidence, and to issue a revised ruling on the 

project application. This decision by the Court is solely a decision on whether there was evidence 

in the record and adequate findings on the contested issues, and does not represent any ruling 

on whether the conditional use permit should or should not be granted. We note that in any such 

supplementary proceedings, Appellee-Applicant is free to amend its application or to present 

additional traffic or engineering evidence, and Appellants are free to engage a traffic engineering 

expert of their own and to present additional evidence on the contested issues. We also note that 

Appellee-Applicant may wish to apply for site plan approval so that it can be considered by the 

DRB at the same time as the remanded proceedings on this conditional use application, as it is 

necessary for Appellee-Applicant to have both approvals before a zoning permit could be granted 

to allow the commencement of construction. 

 Dated at Barre, Vermont, this 21st day of January, 2003.

___________________

Merideth Wright 

Environmental Judge

Footnotes
1 We note that Appellee-Applicant argues that certain of the conditions imposed may be 

excessive or unnecessary; however, as Appellee-Applicant did not appeal the imposition of these 

conditions, they are not before the Court in this appeal.

2 The quality of the December 2001 audio tape is such that the DRB members’ statements are 

audible, but the applicant’s or other witnesses’ statements are virtually inaudible or unintelligible 

in places. The quality of the audio tape of the January 2002 hearing is adequate, but the tape 

supplied to the Court only contained recording on one side, and only contains the audio through 

approximately paragraph 23 of 45 paragraphs of the minutes for that hearing. Both the quality 

and the content of the February 2002 audio tape are adequate, although the second side of the 

tape cuts off just before the end of the hearing. If the Ludlow DRB wishes to continue to conduct 

on-the-record proceedings, it must take care to make an adequate record, capable of being 

transcribed or listened to, and to transmit the complete record to the Court. V.R.C.P. 76(e) and 

74. 

3 The proposal also requires site plan approval, as it is not a permitted use but is a conditional 

use in the district. §380. Site plan approval was not before the DRB and hence is not before the 

Court in this appeal. To obtain site plan approval, an applicant must meet and the DRB must 

make findings and conclusions on all the standards in §380.2, including specifically the safety of 

vehicular circulation between the site and the street; the adequacy of on-site circulation, parking, 

landscaping, and screening; and the effect of the project on adjoining properties. The DRB may 

impose conditions in connection with approval of a site plan.

4 At the January 2002 hearing, the Appellee-Applicant’s witness, Mr. Steeves, stated that the 

building would be air conditioned and that all functions would take place inside the building. 

5 The DRB made only four ‘findings’ under the traffic criterion: a calculation of the required 

parking spaces, that it will use the existing driveway and a new exit onto Dug Road, that "the 

applicant will notify the Ludlow Police Department of special events or renting of the hall, for 

traffic controlling," and that, as the traffic would consist of passenger vehicles rather than state 

highway trucks, it would not adversely impact the roads, that is, the road surface or maintenance.

6 At the December 2001 hearing the Appellee-Applicant’s witness stated that the hedge would 

be ‘four or five feet’ high. No landscaping details or specifications were included in the record. 

The DRB imposed a condition of a ten-foot-wide grassed buffer strip and a six-foot-high hedge, 

but made no requirements regarding the density of the hedge or the species of vegetation.

7 At the December 2001 hearing the Appellee-Applicant’s witness stated that the lighting would 

be approximately 14 feet high and shielded, and that ‘we have brochures’ showing the 

specifications. At the January 2002 hearing Appellee-Applicant’s witness, Mr. Steeves, stated that 

Appellee-Applicant could work out satisfactory lighting, but made no specific proposals. No 

brochures or specifications for the lights were included in the record, and the DRB only imposed a 

condition that the lighting ‘must not disturb’ adjacent property owners and must automatically shut 

off one hour after the building is closed.

8 The DRB made only five ‘findings’ under the character-of-the-neighborhood criterion: a 

quotation of the purpose statement for the Village Residential district, that the parcel is within that 

district, that the parcel meets the minimum lot size for that district, that the parcel was formerly 

used for the state highway department and that a private club house is listed as a conditional use 

in the district, and the conclusory statement that "the Private Clubhouse, as proposed, meets all 

District Standards and the Board finds that the project will have no adverse effects on the 

character of the neighborhood."