                                  STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                        }
In re: Geddes 9-Lot Subdivision                         }        Docket No. 101-5-07 Vtec
        (Appeal of Additional Appellant Lindala)        }
                                                        }

             Decision and Order on Cross-Motions for Summary Judgment

       Appellants Michael Curry and Deborah MacFarlane originally appealed from a

decision of the Planning Commission of the Town of Bakersfield approving Appellee-

Applicants Gary and Gloria Geddes’ subdivision application as a Planned Residential

Development (PRD) or Planned Unit Development (PUD). Additional Appellant Roger

Lindala filed a timely notice of appeal of the same decision.1

       Appellants are represented by Thomas G. Walsh, Esq.; they have entered into a

settlement with Appellee-Applicants that has resulted in the dismissal of their appeal with

certain contingencies, entered as a court order in this matter on March 24, 2008. Appellee-

Applicants are represented by Joseph F. Cahill, Esq. Additional Appellant Lindala has

appeared and represents himself.

       Appellee-Applicants and Additional Appellant Lindala have moved for summary

judgment on all the questions in the Lindala Statement of Questions. The Court did not

have the benefit of any memorandum from the Town of Bakersfield as to the adequacy of

its Zoning Bylaws, as the Town did not enter an appearance or otherwise participate in this

appeal. The following facts are undisputed unless otherwise noted.




1 Mr. Lindala’s Statement of Questions incorporated Appellants’ original ten questions by
reference, and added his own questions 11 through 14; references in this decision will be to
each question number rather than to its original source document.

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       Appellee-Applicants own an approximately 100-acre parcel of property located at

1697 Egypt Road in the Town of Bakersfield, in the Rural zoning district. Appellant

Lindala owns property adjacent to and southeasterly of Appellee-Applicants’ property.

       Appellee-Applicants initially submitted a subdivision application for sketch plan

approval in September of 2005, for a nine-lot subdivision consisting of seven ten-acre lots

and two thirteen-acre lots, as well as what appears from the sketch plan to be a separate lot

of approximately four acres consisting of the land lying under the subdivision roadway

right-of-way. No information was provided as to whether that right-of-way was proposed

to be deeded to the Town or to be held by a homeowners’ association. The Planning

Commission approved Appellee-Applicants’ sketch plan on November 8, 2005.

       The November 23, 2005 letter from the Planning Commission Chair advising

Appellee-Applicants of the decision also suggested the “possibility” of a “clustered

development” that would allow Appellee-Applicants to create the same number of lots, but

on “much smaller parcels (hypothetically 2 acres),” either retaining the remaining land in

some way protected from development or conveying it to the eventual lot owners as

common land. The letter advised Appellee-Applicants that the Commission “would

consider other options that might yield a better use of the land and provide [Applicants]

with more flexibility as the process continues.”

       In light of the suggestions in the letter, Appellee-Applicants developed a new site

plan, together with a draft Declaration of Planned Community (Declaration), and

submitted it with a new subdivision application form on July 27, 2006. The new site plan

shows nine lots, ranging from 29.4 acres down to 4.6 acres in size, with smaller apparent

building envelopes, and with 65.3 acres shown as “open space/common land.” It is unclear

from the site plan how the “open space/common land” was intended to be treated, as it

apparently is comprised of portions of the individual lot areas, although § 6.01(a) of the

proposed Declaration defines the 65.3 acres shown as “open space/common land” as

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making up the “common elements” of the planned community.

       All of the lots except Lot 3 are proposed to have at least 275 feet of frontage on the

subdivision roadway. Lot 3, located on an outside bend of the subdivision roadway, is

proposed to have 158 feet of frontage. The draft Declaration states that it intends to create

a common interest community pursuant to the statutory scheme found in Title 27A, creates

a community association and governance structure, and imposes certain duties and

liabilities upon the eventual lot owners.

       As reflected in the Planning Commission’s written decision, the application was

considered by the Planning Commission both as a Major Subdivision and as a “Planned

Residential Development.” The Planning Commission recognized that it differed from an

application for a conventional subdivision in its proposal for reduced-size lots, limited

building envelopes, and areas designated as open space or common land. The Planning

Commission did not mention the reduced frontage for Lot 3.

       The Planning Commission considered the new application for a new Sketch Plan

approval and approved it at its August 8, 2006 meeting. The Planning Commission

considered the Preliminary Plat stage of subdivision approval at a public hearing on

September 12, 2006, at a site visit held on October 3, 2006, and at public hearings on

October 24 and November 14, 2006. The Planning Commission met and voted to approve

the Preliminary Plat on December 27, 2006. The hearing on the Final Plat stage of

subdivision approval was held on March 5, 2007, the Planning Commission held a

deliberative session on the Final Plat stage of subdivision approval on April 2, 2007, and the

Planning Commission granted Final Plat approval of the proposal, with six conditions, on

April 10, 2007.

       The Planning Commission imposed the following six conditions: (1) that only four

building permits may be active at any one time (that is, that a new building permit may be

granted only after a certificate of occupancy has been granted to conclude one of the four

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pending building permits); (2) that a signed statement that the eventual buyers agree with

the Declaration’s covenants be recorded with each deed; (3) that the community association

created by the Declaration would enforce restrictions on construction, particularly as they

related to “Saturday work issues,” with complaints being forwarded to the Zoning

Administrator; (4) that fences would be upgraded to the satisfaction of [Appellants Curry

and MacFarlane]; (5) that the developer “should revise the covenants” to include language

regarding wood-burning outdoor furnaces and thereafter “submit these to the Planning

Commission for review;” and (6) that a final version of the covenants must be submitted to

the Planning Commission.



       Summary judgment is appropriate if the memoranda, depositions, answers to

interrogatories, and affidavits, if any, “show that there is no genuine issue as to any

material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.

56(c)(3). When both parties seek summary judgment, the Court will give each party the

benefit of all reasonable doubts and inferences when the opposing party’s motion is being

considered. DeBartolo v. Underwriters at Lloyd’s of London, 2007 VT 31, ¶ 8, 181 Vt. 609,

611; In re: Gizmo Realty/VKR Assocs., LLC, Docket No. 199-9-07 Vtec, slip op. at 3 (Vt.

Envtl. Ct. Apr. 30, 2008). When opposing a motion for summary judgment, a party may

not rest on bare allegations alone, but must come forward with some affidavit or other

evidence supporting the existence of disputed material facts. Johnson v. Harwood, 2008 VT

4, ¶ 5; In re: Scarborough Conditional Use Application, Docket No. 206-9-07 Vtec, slip op. at

7 (Vt. Envtl. Ct. Mar. 13, 2008).



Procedural status of the application

       Applicants argue that the Zoning Bylaws adopted in 1994 should be applicable to

the redesigned project, based on the date of the first proposal for sketch plan approval in

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September of 2005, and the fact that the effective date of the more recent Zoning Bylaws

was in August of 2006 (2006 Zoning Bylaws).

       If the ten-lot conventional subdivision that received sketch plan approval in

November of 2005 had been pursued by Applicants to the preliminary plat or final plat

stages, Applicants may have been able to continue to proceed under the 1994 zoning

bylaws in effect when the initial application was made for sketch plan approval. In re

Handy, 171 Vt. 336, 350 (2000); In re Gizmo Realty/VKR Assocs., LLC, Docket No. 199-9-07

Vtec, slip op. at 7-8 (Vt. Envtl. Ct. Apr. 30, 2008).

       However, Applicants instead availed themselves of the Planning Commission’s

suggestion to revise the project to apply for approval as a Planned Residential

Development. The new application for the revised project was submitted for a new sketch

plan approval on July 27, 2006. The relevant date is therefore when the 2006 Zoning

Bylaws were first proposed for public comment, which neither party has provided, since

under 24 V.S.A. § 4449(d) (in effect since July of 2001; formerly codified at § 4443(d)) an

application must be considered under proposed regulations for 150 days after the

regulations have been proposed. As the effective date of the new Zoning Bylaws was in

August of 2006, they must first have been proposed for public comment before the revised

application was filed at the end of July, and therefore the 2006 Zoning Bylaws are

applicable.2


2 The term Planned Unit Development is defined in § 849 of the 2006 Zoning Bylaws in
terms of the statutory definition, 24 V.S.A. § 4303(19), which encompasses the all-residential
type of development that formerly was defined as Planned Residential Development under
the former statute and bylaws. See also 24 V.S.A. § 4417; In re: Dodge Farm Community,
LLC, Concept Plan, Docket No. 155-7-07 Vtec, slip op. at 3 n.1 (Vt. Envtl. Ct. Mar. 24, 2008).
Section 303.6.3 of the Zoning Bylaws requires a Planned Unit Development to obtain
conditional use approval from the Zoning Board of Adjustment, independently of
obtaining any other approval within the jurisdiction of the Planning Commission. This
appeal only addresses issues within the jurisdiction of the Planning Commission, as the

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Question 1 of the Statement of Questions

       Question 1 asks whether the Planning Commission hearing on the final subdivision

review of the proposal was properly noticed in accord with Bakersfield Zoning Bylaws §

201.1.3 (and/or 24 V.S.A. § 4464). After reviewing material provided with regard to this

issue, on March 29, 2008 Appellant Lindala informed the Court “that the point of Question

1 has been satisfied.” Accordingly, Question 1 is hereby DISMISSED as MOOT.



Question 10 of the Statement of Questions

       Question 10 asks whether the Planning Commission violated its procedural rules by

allowing a Commission member who was not present for a hearing to participate in

deliberative sessions.

       The Planning Commission consists of five members, one of whom did not attend one

of the hearings. Section IX of the Planning Commission’s Rules of Procedure provides that

“Absent [commission] members may participate if they have reviewed the audiotape of the

proceedings, and any evidence submitted, subject to the written consent of the applicant

and all interested persons.” Mr. Lindala did not consent to that member’s participation in

the vote.

       The Town of Bakersfield has not adopted the procedures necessary to have its

appeals be on the record; rather, this Court considers the application de novo, applying the

substantive standards applicable in the tribunal appealed from. 10 V.S.A. § 8504(h);

V.R.E.C.P. 5(g). In de novo cases the Court does not generally examine procedural defects

at the municipal level, unless they are so egregious as to implicate basic questions of



Court sits in place of only the Planning Commission in this appeal. In re: Leiter
Subdivision Permit, Docket No. 85-4-07 Vtec, slip op. at 8 (Vt. Envtl. Ct. July 25, 2008)
(citing In re Torres, 154 Vt. 233, 235 (1990)).


                                             6
fairness and impartiality. See, e.g., In re: JLD Props. – Wal Mart St. Albans, Docket No. 132-

7-05 Vtec, slip op. at 4–8 (Vt. Envtl. Ct. Sept. 5, 2006) (board member’s appearance of pre-

judgment required Court to examine procedural defects at municipal level). If a procedural

defect is so inherently unfair that it calls the whole process into disrepute, the remedy is for

the Court to remand the application to the municipal body to conduct a fair proceeding,

rather than to deny the application. Id. at 8.

       Under state law, even in a case using the more formal proceedings necessary to have

an appeal be considered on the record, an absent member is allowed to participate in the

vote if that person listens to the recording of any missed testimony and reviews all the

exhibits and other evidence, without regard to the consent of the participants. 24 V.S.A. §

1208(b). Such procedure is also sufficient under Vermont law in order to comply with due

process. Lewandoski v. Vermont State Colleges, 142 Vt. 446, 452–53 (1983); In re: JLD

Props. – Wal Mart St. Albans, slip op. at 9.

       Thus, if the only procedural problem with the absent member’s participation in the

vote was the lack of consent from all the interested parties, such a requirement is not found

in state law and is not so inherently unfair that it calls the whole proceeding into disrepute.

Accordingly, summary judgment is GRANTED to Appellee-Applicants on Question 10 of

the Statement of Questions.



Questions 8 and 9 of the Statement of Questions

       Questions 8 and 9 relate to the adequacy of the Declaration as a legal document, that

is, whether the Declaration is legally insufficient to create a common interest community,

either under Title 27A of the Vermont Statutes (the Uniform Common Interest Ownership

Act) generally, or for failing to provide certain information and for improper execution

under that statute. 27A V.S.A. § 2-105(a) (requiring a declaration to provide the name of

common interest community and other descriptive information); § 2-101(a) (requiring a

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declaration to be executed in the same manner as a deed).

       This Court has statewide jurisdiction to hear certain matters specified by statute.

See, e.g., In re: Britting Wastewater/Water Supply Permit, Docket No. 259-11-07 Vtec, slip

op. at 3 (Vt. Envtl. Ct. Apr. 7, 2008) (citing 4 V.S.A. § 1001(a), (b) and 10 V.S.A. § 8504).

When statements of questions raise issues beyond this Court’s subject matter jurisdiction,

those issues must be dismissed. See, e.g., In re: G.R. Enterprise, Inc. Sign Application,

Docket No. 27-2-08 Vtec, slip op. at 3 (Vt. Envtl. Ct. May 12, 2008) (dismissing appeal of

DRB’s decision denying a sign application because the Court lacked subject matter

jurisdiction over issues arising under the sign ordinance enabling statute).

       This Court does not have subject matter jurisdiction over issues arising under Title

27A of the Vermont Statutes; therefore both Question 8 and Question 9 must be

DISMISSED. 4 V.S.A. § 1001(b).



Question 5 and 7 of the Statement of Questions

       Questions 5 and 7 relate to whether conditions imposed upon the subdivision’s

approval and required to be contained in the Declaration are unenforceable, as the

Declaration can be later amended by the homeowners, and whether Conditions 5 and 6,

allowing the revision and subsequent filing of the Declaration, deprived the interested

parties of an opportunity to be heard.

       For conditions imposed on a subdivision to be enforceable, they must be imposed in

the decision of the Planning Commission, or in the decision of this Court in this de novo

appeal. The Planning Commission cannot delegate that responsibility. In re: Appeal of

Sunset Cliff, Inc., Docket No. 26-2-01 Vtec (Vt. Envtl. Ct. Nov 13, 2001); and see, e.g., Town

of Westford v. Kilburn, 131 Vt. 120, 126 (1973). As long as they are also imposed in the

decision, conditions may be required to be contained in a community’s declaration as well.

       However, what is at issue in the present appeal is whether these or different

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conditions should be imposed de novo by the Court on the merits of the subdivision

application. To that extent, Questions 5 and 7 remain for the hearing on the merits and

summary judgment must be denied.



Questions 2 and 14 of the Statement of Questions

         Questions 2 and 14 ask whether Applicants have submitted “false evidence” that

requires rejection of the application generally, pursuant to § 206.1 of the Zoning Bylaws,

and specifically whether it should be rejected if the Declaration as proposed in this appeal

differs from that in testimony given at the hearings on this application. Section 206.1

requires an application to be “rejected” if an applicant “grossly misrepresents facts”

pertaining to the application or “files a false application or false evidence.”

         A subdivision or site plan application is expected to evolve through the sketch plan,

preliminary plat, and final plat stages. See, generally, In re Appeal of Carroll, 1007 VT 19,

181 Vt. 383 (discussing multi-stage subdivision review). Such changes in the application do

not constitute misrepresentation, especially in an application which is being considered de

novo by this Court. In such an appeal, it is the evidence that is presented to the Court in

the hearing on the merits that constitutes the application.         If that evidence differs

appreciably from the application that the Planning Commission had before it, it may be

appropriate to remand the matter for the Planning Commission to consider the revised

application in the first instance, but it is not grounds for rejecting the application under §

206.1.

         Accordingly summary judgment is GRANTED to Appellee-Applicant and DENIED

to Appellant Lindala on Questions 2 and 14 of the Statement of Questions.




                                               9
Questions 6, 3 and 11 of the Statement of Questions

       Questions 3 and 11 ask whether this application complies with the provisions of

§303.6 applicable to the Rural zoning district. Specifically, Question 3 asks whether the

project complies with the requirements of § 303.6.5 with regard to farmland preservation,

and Question 11 asks whether the project complies with the objective of the Rural zoning

district described in § 303.6.1. Question 6 raises the merits of the subdivision application as

to whether the proposal qualifies for waivers of lot size and of the frontage of Lot 3, under

§ 402.2.

       With respect to Planning Commission approval of the proposed subdivision, the

provisions of § 303.6 raised in Questions 3 and 11 are only made applicable through § 402.2,

which prohibits the Planning Commission from waiving “the provision of any

improvements” if such a waiver “would have the effect of nullifying the intent and

purpose” of the Zoning Bylaws.

       Accordingly, summary judgment is denied to both parties on Questions 6, 3, and 11,

which remain for trial on the merits of the subdivision application.



Question 12 of the Statement of Questions

       Question 12 asks whether the subdivision complies with the “General Planning

Standards” applicable to subdivisions, found in § 500 of the Zoning Bylaws. Broadly, this

section requires that the land shall be physically suitable for the proposed purpose, that the

development shall show regard for the protection of existing natural resources, that the

development shall be compatible with adjacent uses and respect visual and aural privacy,

that the development shall not cause unreasonable congestion or unsafe conditions on

public or private roads, and that the development shall not place an unreasonable burden

on the Town’s ability to provide services or facilities. §§ 500.1–500.4.

       The affidavit of Applicants’ engineer provides facts in support of the subdivision’s

                                              10
compliance with the general planning standards in § 500.

       A party opposing a motion for summary judgment may not rest on mere allegations

or merely deny the adverse party’s statement of material facts; rather, the party opposing

summary judgment must lay out specific facts, supported by affidavits or other evidence,

showing that there is need for a trial. Field v. Costa, 2008 VT 75, ¶ 14 (citing V.R.C.P. 56).

To oppose Applicants’ motion for summary judgment on Question 12, Appellant Lindala

has merely expressed his concern that the proposed subdivision is inappropriate for this

area and is insufficiently protective of adjacent uses, but has not asserted any specific facts

to support his allegations that this project fails to meet the general standards contained in §

500, or to show a need for a trial on this issue.

       Therefore, because material facts are not in dispute regarding the subdivision’s

compliance with § 500, summary judgment is GRANTED to Applicants and DENIED to

Appellant Lindala on Question 12.



Questions 4 and 13

       Questions 4 and 13 relate to whether Applicants’ proposal may properly be

considered as a Planned Unit Development.

       The 2006 Zoning Bylaws allocate to the Planning Commission the tasks of site plan

review, review of Planned Unit Developments, and review of subdivisions, § 200.2, and

allocate conditional use review to the Zoning Board of Adjustment, § 200.3.1. The term

Planned Unit Development is defined in § 849. Oddly, however, the Zoning Bylaws are

completely devoid of standards or criteria for the tasks of site plan review, review of

Planned Unit Developments, or conditional use review.

       With respect to conditional use review, the statutory general standards now

contained in 24 V.S.A. § 4414(3)(A) govern conditional use review, whether or not those

standards have been written into the particular town’s ordinance. In re Application of

                                              11
White, 155 Vt. 612, 618–19 (1991); Richards v. Nowicki, 172 Vt. 142 (2001); In re John A.

Russell Corp., 2003 VT 93, ¶¶ 25–28, 175 Vt. 520, 525–26. Thus, even though it would be

better practice for the Zoning Bylaws to contain the standards for conditional use review, in

the absence of those standards the ZBA could proceed with a conditional use review

application by applying the statutory review criteria.

       On the other hand, there are no statutory general standards for Planned Unit

Development review. Rather, 24 V.S.A. § 4417 is an enabling statute that provides a menu

of options allowed to be included (or recommended or required to be included) in the

zoning ordinance of any municipality wishing to provide for Planned Unit Development

review. At a minimum, the ordinance must include standards for the review of PUDs, as

well as other provisions listed in § 4417(c), but the statute does not itself provide those

standards.

       Since the Bakersfield Zoning Bylaws do not provide any standards for review of

Planned Unit Developments, the proposed subdivision cannot be considered by the

Planning Commission, and hence by this Court in this appeal, as a Planned Unit

Development. See In re Miserocchi, 170 Vt. 320, 325 (overturning ordinance due to lack of

standards); Appeal of Bone Mountain, Docket No. 114-6-04 Vtec (Vt. Envtl. Ct. May 11,

2005) (applicable standards must be ascertainable from the zoning ordinance); and see

Town of Westford v. Kilburn, 131 Vt. 120, 124–25 (1973) (lack of guiding standards in the

ordinance leaves applicant uncertain as to what factors to be considered by municipal

panel, and opens the door to exercise of discretion in an arbitrary or discriminatory

fashion).

       Although in the absence of standards the proposed project cannot be reviewed as a

PUD, the subdivision regulations (§§ 401-404 of the Zoning Bylaws) and the general

planning standards (§§ 500-501 of the Zoning Bylaws) contain sufficient criteria or

standards to review the proposal as a subdivision and to determine whether any waivers

                                             12
are warranted under § 402.2 of the Zoning Bylaws, and in light of the provisions of § 303.6.5

if farmland is involved.

       Accordingly, summary judgment is GRANTED in PART and DENIED in PART to

both parties on Questions 4 and 13 of the Statement of Questions, as follows. The

subdivision may be considered by the Planning Commission, and hence by this Court in

this de novo appeal, for waivers of otherwise-applicable development requirements

pursuant to § 402.2 of the Zoning Bylaws; the merits of those waivers remain for decision

after trial in the present appeal. The subdivision may not be considered by the Planning

Commission (or by this Court in this appeal) as a Planned Unit Development, as no

standards have been adopted in the Zoning Bylaws pursuant to 24 V.S.A. § 4417 or its

predecessor sections to guide the Planning Commission in carrying out that task. The

subdivision may be considered for conditional use approval by the ZBA as a Planned Unit

Development, using the statutory standards for conditional use approval; however, any

conditional use approval required for the project as a PUD is not before the Court in the

present appeal.



       Accordingly, based on the forgoing, it is ORDERED and ADJUDGED that Question

1 of the Statement of Questions is dismissed as moot; Questions 8 and 9 are dismissed for

lack of subject matter jurisdiction; Appellee-Applicants’ Motion for Summary Judgment is

GRANTED as to Questions 2, 10, 12, and 14; and summary judgment is GRANTED in

PART and DENIED in PART to both parties on Questions 4 and 13 of the Statement of

Questions, as discussed above. Both parties’ Motions for Summary Judgment are DENIED

as to Questions 3, 5, 6, 7 and 11, which remain for the merits of this de novo proceeding.



       A telephone conference has been scheduled (see enclosed notice) to discuss the effect

of this decision on the settlement entered into by the original Appellants, to discuss

                                             13
whether the parties wish to proceed to the merits of the subdivision application and

associated waivers (Questions 3, 5, 6, 7 and 11), and to discuss coordination with any

potential ZBA proceedings on conditional use approval. V.R.E.C.P. 2(b). The Town is also

welcome to request participation in that conference and/or to move to enter its appearance

as an interested party under 24 V.S.A. §4465(b)(2), as its bylaw is at issue in this appeal.



       Done at Berlin, Vermont, this 22nd day of August, 2008.




                            _________________________________________________
                                  Merideth Wright
                                  Environmental Judge




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