                                     STATE OF VERMONT

                                  ENVIRONMENTAL COURT

               In re: Appeal of Sunset Cliff,      }
               Inc., Strathmore Homeowners=        }
               Association, Inc., and Brian        } Docket No. 26-2-01 Vtec
               and Lori Sullivan, et al.           }
                                                   }

               Decision and Order on Appellants= Motion for Summary Judgment

Appellants appealed from a decision of the Development Review Board (DRB) of the City of
Burlington granting final plat approval to Appellee-Applicant Keystone Development Corp. for
construction of a planned residential development known as A Scarlet Circle.@ Appellants
Sunset Cliff, Inc. and Strathmore Homeowners= Association, Inc. are represented by Liam L.
Murphy, Esq. and Lisa B. Shelkrot, Esq.; an Appellant Group consisting of forty owners or
occupants of property in the vicinity of the project is represented by Brian J. Sullivan, Esq.;
Appellee-Applicant Keystone Development Corp. is represented by Vincent A. Paradis, Esq.;
and the City is represented by Joseph E. McNeil, Esq. and Kimberlee J. Sturtevant, Esq.

Appellants have moved for summary judgment on Questions 16 through 19 of their Statement of
Questions, regarding whether the DRB improperly subdelegated its approval authority; and on
Questions 14 and 15 of their Statement of Questions, regarding whether Appellee-Applicant
Keystone has the ability to dedicate streets and roadways within the development. Although in
the pretrial conference the parties discussed and the Court expected that summary judgment
would also be addressed to Questions 9 through 12 regarding the sufficiency of the public
hearings, Appellants did not address those questions, and they are therefore reserved for the
hearing on the merits1. The following facts are undisputed unless otherwise noted.

Appellee-Applicant proposes to construct a planned residential development (PRD) consisting of
148 residential units2 in 33 detached structures on a 40-acre parcel in the City= s waterfront
residential low density (WRL) zoning district. The parcel is owned by the John J. Flynn Estate,
of which the Chittenden Bank is trustee. A representative of the Chittenden Bank signed the
zoning permit application in March of 2000, in addition to Appellee-Applicant= s earlier filing.
A PRD is a permitted use in this zoning district. The DRB granted preliminary plat approval on
April 13, 2000, and granted final plat approval at its meeting of January 9, 2001, after holding
five public hearings from October to January. The January 9, 2001 DRB decision addresses
requirements of both the subdivision3 ordinance and the zoning ordinance, and includes many
conditions.

Questions 14 and 15

Appellants argue that Appellee-Applicant is unable to show that it has the legal capacity to
dedicate streets to the City at some future time, and otherwise has the legal capacity to carry out
the proposed development, and therefore it should not be permitted to proceed with its
application. While it is true that demonstration of this capacity may be necessary as a
prerequisite to approval of a site plan, as well as to approval of the zoning permit, there is no
reason why Appellee-Applicant cannot proceed with its application before the Court at this time.
The lack of that showing does not require summary reversal or denial of the plat approval; it
merely must be an issue during the de novo proceedings before this Court.

Questions 16 through 19

Appellants seek remand, arguing that conditions imposed by the DRB in its decision on several
design review criteria, the inclusionary zoning requirement, and several subdivision criteria,
amount to improper subdelegations of approval authority.

A DRB must consider and rule on each of the approval standards applicable to an application
before it. In turn, an application, such as the site plan at issue in the present case, together with
the information presented to the DRB during the hearings on the application, must be complete
and detailed enough to enable the DRB to rule. When an application does not provide the
information sufficient for a DRB to rule on a particular standard, the DRB should require
supplementary information to be presented at a later hearing, not only to allow the DRB to rule,
but to allow the DRB staff or other municipal departments, as well as interested parties and the
public, to comment on the supplementary information. It is not sufficient to leave the later
information to be reviewed by another municipal department or by the DRB staff, because such a
procedure deprives interested parties from being heard on the supplementary information. Such a
procedure creates the impermissible subdelegation challenged by Appellants in the present
appeal. For example, the DRB cannot provide that A effects on water quality (storm water
runoff, drainage, etc.) shall be reviewed by the Department of Public Works prior to the
commencement of construction,@ because the lack of the storm water drainage and treatment
system design makes it impossible for the DRB to conclude that the project will not result in
undue impacts on water quality, and that conclusion is required for the DRB to be able to issue
the subdivision approval in the first place.

By contrast, certain zoning or subdivision standards may require that another agency or
municipal department make a particular ruling before the DRB can complete its work on the
application before it. Such a requirement is not subdelegation; the authority rests under the
ordinance with the other municipal department. For example, under ' 14.1.4 of the Zoning
Ordinance, the Housing Trust Fund must issue its certificate of inclusionary housing4 compliance
prior to the DRB= s granting subdivision approval. For the DRB to require proof that the
certificate has issued is not subdelegation. However, neither can the DRB go ahead and rule on
the subdivision approval, contingent upon the later issuance of the certificate, because the
Zoning Ordinance requires it to have occurred prior to the DRB ruling.

Once a DRB has made a ruling on a specific standard, and has imposed a sufficiently specific
condition (for example, that curb cuts shall be a particular width), it is also not illegal
subdelegation for the DRB to require that a staff member or other municipal department
determine whether that condition has been met, prior to releasing the zoning permit or prior to
issuance of a certificate of occupancy. The test is whether the condition imposed by the DRB is
sufficiently specific for the permittee and the public to determine whether it has been complied
with.

Based on this analysis, it is apparent that the DRB decision in this case is flawed, and that certain
of its findings and conditions fail to comply with the Zoning and Subdivision ordinances or
contain impermissible subdelegations. However, as the appeal is de novo, it is unnecessary to
remand this matter to the DRB for any further DRB action. Rather, during the proceedings in this
Court the parties may argue for different findings, conclusions and conditions in the Court= s
decision on the application. Accordingly, Appellants= Motion for Summary Judgment is
GRANTED in PART, on Questions 16 through 19, in that the DRB decision contains some
impermissible subdelegations and premature rulings, but DENIED in PART in that no remand is
warranted.

We will hold a conference in person at the Chittenden District Court (Costello Courthouse) on
Thursday, November 29, 2001 at 1 p.m. to discuss the scheduling of this matter for a hearing on
the merits. The parties should be prepared to discuss any substantial changes in the project or its
plans since the appeal was filed, and whether any other proceedings must be completed in any
other forum.



Done at Barre, Vermont, this 13th day of November, 2001.




___________________
Merideth Wright
Environmental Judge



                                             Footnotes
1.
     In its responsive memorandum Appellee-Applicant requests dismissal of Questions 9
through 12. However, those questions involve the merits of the appeal, as well as the adequacy
of the hearings held on those issues. Appellants were not obligated to move for summary
judgment on those issues, and no grounds appear for the dismissal of those issues.
2.
     Material facts are disputed or at least have not been established as to whether the units will
be rental units or held in condominium ownership.
3.
    We note that Appellants have submitted a copy of the Subdivision Ordinance that only
contains every other page! The omission did not affect the Court’s ruling on the motions;
however, the parties should be prepared to provide a complete copy at the hearing on the merits.
4.
     We note that this certificate, in turn, appears to depend in part on whether the units will be
rental units or in condominium ownership (compare §14.1.7 with §14.1.8).
