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STATE OF VERMONT 

ENVIRONMENTAL COURT 

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In re: R.L. Vallee, Inc. PUD – Preliminary Plat } Docket No. 100-5-07 Vtec 

In re: R.L. Vallee, Inc. PUD – Final Plat } Docket No. 101-5-08 Vtec 

 (Appeals of Timberlake Associates, LLP) } 

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Decision and Order on Pending Motions

Appellant Timberlake Associates, LLP, appealed from two decisions of the 

Development Review Board (DRB) of the City of South Burlington, approving a 

preliminary plat application and a final plat application by Appellee-Applicant R.L. 

Vallee, Inc. for a Planned Unit Development (PUD) at Spillane’s Service Center at 811 

Williston Road. Appellant is represented by David L. Grayck, Esq.; Appellee-Applicant 

is represented by Thomas G. Walsh, Esq.; and the City is represented by William E. 

Flender, Esq. Appellee-Applicant has moved for partial summary judgment on 

Questions 3 and 23 of the Consolidated Statement of Questions. Appellee-Applicant 

has also moved to dismiss Questions 12, 17, 18, 19, and 21 of the Consolidated 

Statement of Questions. For clarity of reference, this decision will refer to the questions 

from the statement of questions in the appeal of the preliminary plat with the 

designation “PQ,” and in the statement of questions in the consolidated appeals with 

the designation “CQ.” 

In Docket No. 100-5-07 Vtec, Appellant appealed the DRB decision granting 

preliminary plat approval to Appellee-Applicant, and filed a statement of questions 

containing twenty-one questions. These questions did not refer to any specificallynumbered sections of the zoning ordinance. After the Court’s August 17, 2007 decision 

and order on cross-motions for partial summary judgment, parties agreed to await the 

DRB’s decision on the final plat approval, allowing any new appeal of the final plat 
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approval to be consolidated with the appeal of the preliminary plat approval. The 

Court ruled on an additional cross-motion for partial summary judgment as to PQ 21 on 

February 7, 2008. 

In Docket No. 101-5-08 Vtec, Appellant appealed the DRB decision granting final 

plat approval, and filed a Statement of Questions containing twenty questions. These 

questions did refer to specifically-numbered sections of the zoning ordinance. The 

appeals were consolidated, and Appellant filed a Consolidated Statement of Questions 

combining the questions from both appeals that remained after the various motion 

rulings. 

Appellee-Applicant has now moved to dismiss the following consolidated 

questions, which ask whether the proposed project complies with the respective 

specifically-numbered sections of the zoning ordinance: CQ 12: § 15.18(A)(8); CQ 17: 

§13.01(A); CQ 18: § 13.01(B)(1); CQ 19: § 13.01(N)(2); and CQ 21: § 14.06(B)(3). 

Appellee-Applicant has also moved for summary judgment on CQ 3 and CQ 23. 

CQ 3 asks whether the project should the project “be required to meet the minimum 

setback and coverage requirements” of the zoning ordinance? CQ 23 asks whether the 

project requires conditional use approval “because it is multiple uses on one lot?” The 

following facts are undisputed unless otherwise noted. 

Appellee-Applicant owns a 0.47-acre property with an existing service station 

and convenience store at 811 Williston Road, in the Commercial 1 zoning district and 

the Traffic Overlay 1 zoning district. Appellant owns an L-shaped parcel of property 

with an existing service station and convenience store at 801 Williston Road, which 

adjoins the southerly and westerly boundaries of Appellee-Applicant’s property. 

Appellee-Applicant applied for preliminary plat approval for a Planned Unit 

Development on the subject property, including the replacement of the existing 2,313 

square foot building with a new building of the same square footage. The new building 

is proposed to house two uses: a convenience store (1,079 square feet) and a short-order 
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restaurant (1,234 square feet). Appellee-Applicant also proposes to reduce the number 

of fueling positions on the property from eight to six. 

Appellee-Applicant’s proposal was submitted for review as a Planned Unit 

Development under Article 15 of the City of South Burlington Land Development 

Regulations (Regulations).1 Section 2.02 of the Regulations define a PUD as: 

[o]ne or more parcels of land to be developed as a single entity, the plan 

for which may propose any authorized combination of density or intensity 

transfers or increases, as well as the mixing of land uses. This plan, as 

authorized, may deviate from bylaw requirements that are otherwise 

applicable to the area in which it is located with respect to the area, 

density or dimensional requirements or allowable number of structures 

and uses per lot as established in any one or more districts created under 

the provisions of these regulations. . . . 

Section 15.01 states that the purpose of PUD review is “to provide relief from the strict 

dimensional standards for individual lots in these Regulations in order to encourage 

innovation in design and layout, efficient use of land, and the viability of infill 

development and re-development in the City’s Core Area . . . .” 

PUD review is required for certain applications and elective for others. §§ 

15.02(B), (C). Appellee-Applicant applied under § 15.02(C) to have its proposal 

reviewed as a PUD; that section allows “any applicant for site plan, conditional use 

and/or subdivision review, or any other application for land development requiring 

action by the [DRB]” to “request review pursuant to the PUD process and regulations.” 

Article 15 of the Regulations sets out the procedures and considerations for PUD 

approval. Like subdivision approval, PUD review is a three-stage process consisting 

first of sketch plan review under § 15.05, followed by preliminary plat review, §§ 

 

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 All references to section numbers in this decision refer to sections of the City of South 

Burlington Land Development Regulations unless otherwise noted. 
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15.08(A), (B), and then by final plat review. §§ 15.08(C)-(E). Specific criteria for review 

of proposed PUDs are found in § 15.18. 

Proposed PUD projects must also obtain site plan approval from the DRB under 

Article 14 of the Regulations. § 14.03(A)(6). Specific criteria for site plan approval are 

found in § 14.06. Certain “Supplemental Regulations” found in Article 13 also apply to 

proposed PUD projects, including specifically those in § 13.01 relating to “Off-Street 

Parking and Loading.” 

Motion to Dismiss

Appellee-Applicant argues that CQ 12, 17, 18, 19, and 21 should be dismissed 

because they were not raised in the appeal of the preliminary plat approval. However, 

Appellant did raise the issues in CQ 12, 17, 18, 19, and 21 in the appeal of the 

preliminary plat approval. The Statement of Questions filed in the appeal of the 

preliminary plat approval simply asked whether the project complied with certain 

requirements of the Regulations (or with requirements paraphrased from the 

Regulations) without specifying the specifically-numbered section of the Regulations 

that imposed the particular requirement. The more broadly-worded questions 

regarding the preliminary plat approval in fact were inclusive of all the issues raised in 

the five questions at issue in the present motion.2

 CQ 12 asks whether the proposed project complies with a specific subsection of 

the PUD review criteria found in § 15.18. Specifically, CQ 12 refers to § 15.18(A)(8), 

 

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 Neither the Rules for Environmental Court Proceedings nor the statute granting 

jurisdiction in these cases require issues to be raised at a preliminary approval stage in 

order to preserve them for appeal at the final approval stage. See 10 V.S.A. § 8504; 24 

V.S.A. § 4471; V.R.E.C.P. 5. In re Appeal of Carroll, 2007 VT 19, 181 Vt. 383, only 

specifically addresses the participation requirement for appellant standing under 24 

V.S.A. § 4471: that participation at one stage of the multistage approval process is 

sufficient to meet that participation requirement. Carroll, 2007 VT 19, ¶¶ 1, 15. 
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regarding whether certain services and infrastructure have been designed in a manner 

that allows extension to adjacent properties. PQ 6 asked whether the project meets “the 

applicable criteria for a PUD.” Since the applicable criteria for PUD review are found in 

§ 15.18, PQ 6 incorporated all of the subsections of § 15.18, including the criteria in § 

15.18(A)(8) referenced in CQ 12. Moreover, the text of CQ 12 is the equivalent in 

content to that of PQ 13. Compare CQ 12 (“[w]hether the [p]roject complies with [ ] 

Section 15.18(A)(8) with respect to whether the roads, recreation paths, stormwater 

facilities, sidewalks, landscaping, utility lines and lighting have been designed in a 

manner that is compatible with the extension of such services and infrastructure to 

adjacent properties,”) with PQ 13 (“[i]s the [p]roject designed in a manner that roads, 

utilities, sidewalks, and lighting are designed to be consistent with City utility and 

roadway plans and standards, and adjacent properties?”). 

 CQ 17, 18, and 19 all ask whether the project complies with certain specific 

subsections of the Supplemental Regulations regarding “Off-Street Parking and 

Loading” found in § 13.01. Two questions in the appeal of the preliminary plat 

approval also related to parking issues: PQ 16 and PQ 17. PQ 16, which asked whether 

the project is “designed to provide . . . safe pedestrian movement, and adequate parking 

areas,” is broad enough to include the parking and parking-related safety issues in § 

13.01 that are now raised by CQ 17, 18, and 19. 

 CQ 21 asks whether the project complies with a specific subsection of the site 

plan review criteria found in § 14.06. PQ 15 asked whether the project met the site plan 

review criteria of the ordinance. Since the site plan review criteria are found in § 14.06, 

PQ 15 incorporates all of the subsections of § 14.06, including § 14.06(B)(3), the subject 

of CQ 21. 

 As all five of the challenged consolidated questions were found within the initial 

statement of questions in Docket No. 100-5-07 Vtec, Appellee-Applicant’s Motion to 

Dismiss them must be DENIED. 
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Motion for Summary Judgment

 Appellee-Applicant has moved for summary judgment on CQ 3 and 23, which 

ask whether the project must meet minimum setback and coverage requirements, and 

whether conditional use approval is required for the project. 

 The DRB has authority to modify minimum setback and coverage requirements 

for PUDs under § 15.02(A)(3), which states that, “[i]n conjunction with PUD review, the 

modification of these [ ] Regulations is permitted subject to the conditions and 

standards in this Article and other applicable provisions of these Regulations.” This 

allows the DRB to modify any portion of the Regulations, including those related to 

setbacks and coverage, for projects applying under the PUD review procedures. 

Material facts are disputed, however, as to whether any of the requested modifications 

of the regulatory requirements should be granted by the Court; so that AppelleeApplicant’s Motion for Summary Judgment as to CQ 3 must be DENIED.. 

 In review of a PUD application, a separate conditional use permit is not required, 

pursuant to § 15.03(A). That section provides that “[i]n any application for PUD review, 

all uses allowed as permitted or conditional uses in the underlying district(s) involved 

in the application shall be deemed to be permitted uses and a separate conditional use 

permit or permits shall not be required” (emphasis added). Under § 15.02(C), any 

applicant for a permit requiring DRB review may apply for approval of the project as a 

PUD. Thus a separate conditional use permit is not required in this PUD proceeding, 

and Appellee-Applicant’s Motion for Summary Judgment as to CQ 23 must be 

GRANTED. 

 Of course, the issue of whether the project meets all the standards for PUD 

approval will be argued by the parties in their post-trial memoranda based on the 

evidence submitted at trial, including whether the purpose statement regarding PUDs 

in § 15.01 (to encourage innovation in design and layout, and efficient use of land) has 

any independent regulatory effect. 
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Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED 

that Appellee-Applicant’s Motion for Partial Summary Judgment on Question 3 of the 

Consolidated Statement of Questions is DENIED, Appellee-Applicant’s Motion for 

Partial Summary Judgment on Question 23 of the Consolidated Statement of Questions 

is GRANTED, and Appellee-Applicant’s Motion to Dismiss Questions 12, 17, 18, 19, and 

21 of the Consolidated Statement of Questions is DENIED. 

Done at Berlin, Vermont, this 3rd day of October, 2008. 

 _________________________________________________ 

 Merideth Wright 

 Environmental Judge