STATE OF VERMONT

ENVIRONMENTAL COURT

In re: Appeal of Hector J. LeClair }

}

}

}

}

Docket No. 62-5-01 Vtec

Decision and Order on Town= s Motion for Summary Judgment

Appellant Hector J. LeClair appealed from the March 28, 2001 decision of the Development 

Review Board (DRB) of the Town of Williston granting a phasing allocation for the final twelve 

residential units of an already-approved subdivision application. Appellant is represented by 

Steven J. Kantor, Esq.; the Town is represented by Paul S. Gillies, Esq. Interested persons Tyler 

Dawson and Randall Kimball are represented by Robert J. Perry, Esq. but have not participated 

in the briefing of this motion.

The Town= s motion addresses Questions 2 and 3 of Appellant= s Statement of Questions: 

whether Appellant acquired a right to a particular building permit phasing allocation or otherwise 

received the Planning Commission= s A approval@ prior to the March 2001 decision; and 

whether the Town validly enacted its 1998 phasing allocation rating system.

The following facts are undisputed unless otherwise noted.

Appellant received a subdivision permit in February 1995 for a 35-lot subdivision including 31 

residential lots. That permit was not appealed and became final. One condition of that permit was 

that:

Construction phasing is approved at fifteen (15) residential dwellings per fiscal year with 

construction capped at nineteen (19) dwellings. Due to the current elementary school 

overcrowding situation, the permittee shall seek Planning Commission approval prior to the 

issuance of a building permit for any of the remaining twelve (12) residential units.

Appellant remains entitled to the benefit of his 1995 subdivision permit. The only issue before the 

court in the present appeal relates to the phasing of the remaining twelve units.

A March 1995 A Phasing Recommendations@ report by then-Town Planner David Spitz 

recognized that school congestion A continues to be a primary concern@ and recommends that 

the number of schoolchildren from new housing units should be restricted for at least two years. 

In addressing several specific projects, the report recommends a phasing schedule for the final 

twelve LeClair units at the rate of four units per year beginning with the 1997-98 fiscal year. 

Appellant received a copy of the report. 

On January 4, 1996, Appellant wrote a letter to Town Planner Spitz, stating in full as follows:

YOUR PHASING LETTER OF 3/21/95 OF MY 12 ALREADY APPROVE[D] HOUSE LOTS. I 

WOULD LIKE TO REQUEST A LETTER OF ASSURANCE THAT I CAN START BUILDING ON 

FOUR(4) LOTS PER YEAR STARTING IN YEAR 1997 UNTIL PROJECT IS COMPLETED.
Appellant did not file any request at that time with the then-Planning Commission. No Town 

official ever replied to this request.

The 1998 Williston Annual Growth Report published by the Town included in Table 2, A

Anticipated Residential Buildout,@ those residential projects A already approved with required or 

anticipated phasing.@ Appellant= s project is listed as A H. LeClair (19 + 12).@ Entries for that 

project show 2 permits issued in the 1997-98 fiscal year; 10 as A built/permitted to date;@ an 

entry of "na1" under A remaining allocated;@ 4 per year for each of the five years from 1998-99 to 

2002-03 under the heading of A estimated permits (including recommended new allocations);@

and no units as A phased for following years.@

Accordingly, as of some time in 1998, the status of Appellant= s remaining units2 was that they 

had not yet been allocated, but were anticipated to be allocated at a rate of four per year for each 

of the next five years. There is no indication that Appellant sought approval of any allocations in 

1998.

In late 1998, the Town adopted amendments to its subdivision ordinance regarding phasing 

allocations; the amendments took effect on January 11, 1999. The notice for the public hearing 

on the ordinance amendments before the Selectboard, stated in error that the hearing would be 

before the Planning Commission. It was in fact held before the Selectboard.

There is no indication that Appellant sought approval of any allocations in 1999.

In August 2000, Appellant= s engineer wrote a letter to Town Planner Michael Munson, laying out 

the history described above. The letter noted that, A following the adoption of the most recent 

phasing guidelines, all projects that had received at least conceptual approval were to be 

evaluated by the Design3 Review Board for determination of the appropriate schedule,@ and 

stated that A Mr. LeClair was never notified that his project was eligible assuming that he would 

be subjected to that process.@ The letter asked for the Town Planner= s A assistance in this 

matter.@ This letter suggests that Appellant and his engineer thought that the project was subject 

to the new phasing regulations, and were merely seeking to be included with other projects in the 

DRB= s then-current consideration for a phasing schedule.

Mr. Munson replied by letter dated September 1, 2000, that the former Planning Commission had 

never acted on any phasing recommendation for the last twelve units of the LeClair development 

and that Mr. LeClair= s January 4, 1996 letter A cannot be construed as a request to the Planning 

Commission for a phasing allocation.@ The letter stated that Appellant should submit a letter 

requesting consideration of the remaining twelve units during the Board= s A next annual phasing 

allocation.@ The letter stated that it was a decision of the Zoning Administrator that could be 

appealed to the Development Review Board. Appellant did not appeal the Town Planner= s 

opinion letter.

No documents reflecting an application were filed by either party, but Appellant and his engineer 

appeared at a February 27, 2001 hearing of the DRB and requested A phasing that was 

consistent with what had been in the pipeline for six years. This was four units per year.@ The 

DRB in its A 2001 Residential Growth Management phasing allocations@ on March 27, 2001 

granted a phasing allocation to Appellant for the final twelve lots in his project at the rate of four 

units per fiscal year beginning in the 2005-06 fiscal year. Appellant appealed from this decision in 

the present appeal.

The Town seeks summary judgment on Question 3, whether the Town validly enacted its phasing 

allocation rating system. Under 24 V.S.A. ' 4494(b), A [n]o person shall challenge for purported 

procedural defects the validity of any plan or bylaw as adopted, amended or repealed under this 

chapter after two years following the day on which it would have taken effect if no defect had 
occurred.@ Appellant= s Notice of Appeal was filed on May 9, 2001. The alleged defect is 

procedural in nature and Appellant= s challenge is outside the two-year limitations period. 

Accordingly, the Town= s Motion for Summary Judgment is GRANTED on Question 3.

Question 2 is whether A Appellant= s requested building permit phasing allocation should be 

granted by virtue of its previous acceptance by the Town of Williston prior to the adoption of the 

Williston phasing allocation rating system.@ Appellant argues the condition regarding 

construction on the final twelve lots was limited in the 1995 subdivision permit only due to school 

overcrowding, and merely required a request for approval when the overcrowding subsided. 

Appellant argues that the Town should be equitably estopped now from postponing his phasing 

allocation to begin in July 2005.

Appellant is correct that he holds a final unappealed subdivision permit approving the lots in 

question, and is equally correct that the permit= s condition was linked to the issue of school 

crowding. Appellant would have been entitled to consideration of his remaining twelve units under 

the rules applicable prior to the 1999 allocation amendments, had he made application for such 

allocations prior to that time. However, Town Planner Munson was correct in his September 2000 

ruling that Appellant= s 1996 two-sentence letter to the former Town Planner cannot be construed 

as having been an application to the then-Planning Commission for the unallocated building 

permits. Further, Appellant did not appeal the September 2000 ruling to the DRB.

Under the circumstances of this case, the doctrine of equitable estoppel is inapplicable. Appellant 

simply did not make the required application to the Planning Commission, nor did he appeal the 

Town Planner= s 1990 opinion that he still needed to do so. Ordinarily, a claim for equitable 

estoppel requires the establishment of four elements: 

(1) the party to be estopped must know the facts; (2) the party to be estopped must intend that its 

conduct shall be acted upon, or the conduct must be such that the party asserting estoppel has a 

right to believe it is intended to be acted upon; (3) the party asserting estoppel must be ignorant 

of the true facts; and (4) the party asserting estoppel must detrimentally rely on the conduct of the 

party to be estopped. 

In re Letourneau, 168 Vt. 539, 547 (1998); Agency of Natural Resources v. Godnick, 162 Vt. 588, 

592 (1994). Even without regard to the fact that estoppels against the government are rare and 

are to be invoked only in extraordinary circumstances, In re McDonald's Corp., 146 Vt. 380, 383 

(1985), the elements of estoppel are not found in the present case. Appellant= s 1995 permit 

condition required him to apply to the Planning Commission for approval of the remaining twelve 

units. No action of a Town representative misled Appellant into thinking that the condition had 

been met. Nor was Appellant ignorant of the true facts, as he ultimately did apply in 2001.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that the Town= s 

Motion for Summary Judgment is GRANTED as to Questions 2 and 3. We will hold a telephone 

conference on January 4, 2002 to determine how the parties wish to proceed on the remaining 

question.

Done at Barre, Vermont, this 19th day of December, 2001.
___________________

Merideth Wright 

Environmental Judge

Footnotes

1.

 While „n/a‟ usually means “not applicable,” no key is provided in the document and it could 

equally mean “none allocated.” 

2.

 Apparently eight more than the twelve at issue in the present appeal, for a total of twenty 

remaining units.

3.

 Probably intended to refer to the “Development” Review Board.