                                   STATE OF VERMONT
SUPERIOR COURT                                              ENVIRONMENTAL DIVISION
Vermont Unit                                                   Docket No. 31-4-15 Vtec


BlackRock Construction LLC Subdivision                     DECISION ON MOTION



         Applicant BlackRock Construction, LLC (BlackRock) appeals a decision by the Town of
Hinesburg Development Review Board (DRB) denying its sketch plan for a mixed-use
development known as “Haystack Crossing” (the Project) located in the Town of Hinesburg,
Vermont (Town). The DRB denied the sketch plan based on its conclusion that the Town does
not currently have adequate wastewater capacity to meet the full needs of the proposed 216-
unit subdivision. BlackRock challenges the authority of the DRB to deny its sketch plan on this
basis.
         The parties agree that the sole issue for this Court to decide is whether the DRB has the
authority to deny sketch plan approval on the basis of inadequate wastewater capacity.
BlackRock and the Town have each submitted a memorandum of law in support of their
positions. Because this appeal presents a pure legal issue and the facts are not in dispute, we
treat the filings as cross-motions for summary judgment.

                                       Factual Background
         For the sole purpose of putting the pending motions into context, the Court recites the
following facts, which it understands to be undisputed unless otherwise noted:
1.       On December 12, 2013, BlackRock applied for sketch plan approval of a mixed-use
development known as “Haystack Crossing” in the Town of Hinesburg.
2.       The December 12, 2013 sketch plan is subject to the Town of Hinesburg Subdivision
Regulations adopted on November 5, 2013 (the Regulations).
3.       On August 27, 2014, the DRB issued its findings of fact, conclusions and order denying
sketch plan approval for the Project (August 27, 2014 Decision). A copy of the August 27, 2014
Decision was submitted as BlackRock Ex. A.

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4.     In its August 27, 2014 Decision, the DRB denied sketch plan approval largely due to
concerns that the proposed Project failed to provide an adequate mix of uses.
5.     In its August 27, 2014 Decision, the DRB addressed the issue of wastewater
capacity in Conclusion 12, providing:
       Subdivision planning standard 5.1.8 & 5.1.9 & 5.1.11 (water supply, wastewater
       disposal, municipal services). As noted in the Applicant’s May 9 narrative, the
       project will have substantial impacts on the Town’s water supply and
       wastewater treatment capacities. These are not grounds to deny the proposed
       sketch plan, but do warrant further review at later stages of any subdivision
       review (e.g., preliminary and final plat review) before compliance with these
       planning standards can be determined.
6.     On February 12, 2015, BlackRock submitted a second sketch plan to the DRB.
7.     The February 12, 2015 sketch plan is also subject to the Hinesburg Subdivision
Regulations adopted on November 5, 2013.
8.     On March 13, 2015, the DRB issued its findings of fact, conclusions and order (March 13,
2015 Decision), submitted as BlackRock Ex. B, again denying sketch plan approval.
9.     In its March 13, 2015 Decision, the DRB found that the Project’s proposed 219
residential units would require 45,990 gallons of wastewater capacity per day, while the Town
had only 40,908 gallons/day in available reserve capacity.
10.    The DRB concluded that the sketch plan should be denied because the Town had
inadequate wastewater treatment capacity to meet the full subdivision’s needs.

                                           Discussion
       In this appeal, the parties stipulate that the sole issue for our consideration is whether it
was proper for the DRB to deny BlackRock’s sketch plan due to wastewater capacity concerns.
In its memorandum of law, BlackRock contends that the DRB does not have authority to deny a
sketch plan on the basis of inadequate wastewater capacity, and therefore, its sketch plan must
be approved. In its responsive memorandum, the Town contends that the DRB’s denial was
proper because the Regulations direct the DRB to review a sketch plan to determine whether it
complies with substantive provisions of the Regulations and to approve, approve and modify, or
deny the sketch plan based on its compliance. Therefore, the Town argues, the inadequate
wastewater capacity issue is a proper basis to deny BlackRock’s sketch plan. Although the

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parties label their filings as memoranda of law, because the facts are undisputed and the
parties present a pure legal issue for our consideration, we treat the filings as cross-motions for
summary judgment. See In re Shenandoah, LLC, Docket No. 245-10-08 Vtec, slip op. at 1 (Vt.
Envtl. Ct. Sept. 11, 2009).
        We will grant summary judgment to a moving party upon a showing that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”   V.R.C.P. 56(a); V.R.E.C.P. 5(a)(2).      When considering cross-motions for summary
judgment, the Court considers each motion individually and gives the opposing party the
benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc.,
2009 VT 59, ¶ 5, 186 Vt. 332. V.R.C.P. 56(c)(1)(A). We also accept as true all factual allegations
made in opposition to a motion for summary judgment, so long as they are supported by
“specific citations to particular parts of materials in the record.” V.R.C.P. 56(c)(1)(A).
        In many municipalities, review at the preliminary sketch plan stage is often relatively
cursory, largely focusing on whether the proposal should be classified as a major or minor
subdivision, and highlighting issues for further discussion that will need to be addressed at a
later stage in the permitting process. See Perras & Sons, Inc., No. 29-2-06 Vtec, slip op. at 5 (Vt.
Envtl. Ct. Oct. 18, 2006) (Durkin, J.). The stated purpose of sketch plan review in Section 3.1 of
the Regulations adopts this conceptual approach, providing:
        The purpose of sketch plan review is to allow the subdivider to meet with the
        [DRB] to discuss the proposed subdivision conceptually, before the subdivider
        invests substantial effort and resources in design and planning for the project.
        Sketch plan review also gives the [DRB] an opportunity to classify the project and
        define the issues to be addressed by the subdivider for subsequent meetings.
Section 3.1.6—Action on the Sketch Plan—however, directs the Hinesburg DRB to “study each
sketch plan to determine whether or not it conforms to, or would be in conflict with the Town
Plan, the Zoning Bylaws and any other By-Laws then in effect,” and to “approve, modify and
approve, or disapprove the sketch plan” within 45 days after the sketch plan review.
        The bylaws relied on by the DRB in its March 13, 2015 Decision are found in Section 5.1
of the Regulations, which lists applicable subdivision planning standards. Specifically, Section
5.1.9 provides the wastewater disposal standard, requiring the DRB to determine “[w]hether
the project has access to municipal wastewater disposal facilities, in conformance with any

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sewage disposal policies or regulations in effect . . . .” In its March 13, 2015 Decision, the DRB
concluded that the sketch plan did not comply with Section 5.1.9 because the Town had
inadequate wastewater capacity to meet the full needs of the Project.
       Sketch plan review in a specific town is governed by the town’s regulations. We need
not decide whether the Hinesburg DRB has the authority, under the particular Regulations at
issue here, to deny sketch plan approval on the basis of wastewater capacity. Accepting that
the DRB has such authority, we find that the DRB’s August 27, 2014 Decision denying
BlackRock’s initial sketch plan, precludes the DRB from denying sketch plan approval on the
basis of inadequate wastewater treatment capacity in its March 13, 2015 Decision.
       In its August 27, 2014 findings of fact, conclusion and order, the DRB concluded that
inadequate wastewater treatment capacities “are not grounds to deny the proposed sketch
plan,” but rather are issues for review at later stages. BlackRock’s Ex. A, at 6. As this Court has
held, a preliminary determination that goes unappealed, provides finality for certain legal
determinations properly made at that stage of the subdivision review proceeding. In re
Simpson Dev. Corp., No. 54-3-05 Vtec, slip op. at 13 (Vt. Envtl. Ct. June 27, 2006). If, as the
Town argues, it was proper for the DRB to make certain legal determinations about the
Project’s compliance with applicable subdivision regulations in its sketch plan review, then
those determinations are entitled to finality if they are not appealed. Accordingly, because the
DRB’s conclusions in its August 27, 2014 Decision were not appealed, they are final and binding
even if they are in error. See 24 V.S.A. § 4472(d). As a result, BlackRock and the Town are
“bound by that decision.” Id.
       To hold otherwise would defeat the predictability and fairness that local land use
regulations should achieve. As Section 3.1 of the Regulations makes clear, sketch plan review is
meant to identify issues and begin a dialogue between the applicant and DRB. The applicant
can then take the suggestions and issues identified by the DRB and modify the project
accordingly. In its August 27, 2014 Decision, the DRB highlighted issues with BlackRock’s initial
sketch plan concerning the layout and incorporation of mixed use development. Further, the
DRB specifically told BlackRock that wastewater capacity was not an issue at the sketch plan
stage. BlackRock then submitted a revised sketch plan addressing those issues identified by the


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DRB. Now, after time, effort, and capital has been expended addressing issues BlackRock was
told were relevant, the DRB surprises BlackRock with the conclusion that wastewater capacity
is, after all, an issue that must be addressed. It is certainly the case that any wastewater
capacity issue will need to be addressed at later stages of the permitting process. Yet the DRB
cannot derail the Project at this preliminary stage with an issue BlackRock had no notice of and,
what is more, was specifically told need not be addressed at the sketch plan stage.
       For the foregoing reasons, we conclude that the DRB is bound by its conclusion that
inadequate wastewater capacity is not grounds to deny BlackRock’s sketch plan, and therefore,
we GRANT summary judgment for BlackRock.
       A Judgment Order accompanies this Merits Decision. This concludes the matter before
the Court.


Electronically signed on April 21, 2016 at 11:48 AM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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