2013 VT 4


In re Stowe
Highlands Merger/Subdivision Application (2012-100)
 
2013 VT 4
 
[Filed 11-Jan-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 4

 

No. 2012-100

 

In re Stowe Highlands
  Merger/Subdivision Application


Supreme Court


 


 


 


On Appeal from


 


Superior Court,


 


Environmental Division


 


 


 


September Term, 2012


 


 


Thomas
  G. Walsh, J.


 

Leighton C. Detora, Pro Se, Barre, Appellant.
 
Amanda S.E. Lafferty of Stitzel, Page & Fletcher, P.C.,
Burlington, for Appellant Town of  
  Stowe.
 
Harold B. Stevens of Stevens Law Office, Stowe, for
Appellee.
 
 
PRESENT:  Reiber, C.J.,[1] Dooley, Skoglund, Burgess and Robinson,
JJ.
 
 
¶ 1.            
BURGESS, J.   This appeal stems from the latest
litigation involving developer Stowe Highlands and its Resort Planned Unit
Development (PUD) in the Town of Stowe.  The Stowe Development Review
Board (DRB) denied Stowe Highlands’ application to amend the PUD by subdividing
and then merging certain lots, including one designated for a hotel.  The
DRB concluded that the amendment amounted to a change in the permit conditions
and that such amendment was not warranted because Stowe Highlands had not
demonstrated an unanticipated change in factual circumstances beyond its control.
 Stowe Highlands appealed this denial to the Environmental Division of the
Superior Court, which reversed, concluding that the application required no
permit condition change and that denial on that basis was therefore unfounded.
 One of the PUD lot owners, Leighton C. Detora, and the Town appeal that
decision, arguing that the original DRB decision was correct.  We affirm
the Environmental Division.
¶ 2.            
The basic facts are undisputed.  Applicant is the permittee of a
236-acre Resort PUD.  Issues have arisen since the Resort PUD was
initially granted, and this Court has entertained several appeals in the
matter.  See, e.g., In re Stowe Highlands Resort PUD to PRD Application,
2009 VT 76, 186 Vt. 568, 980 A.2d 233 (mem.); In re 232511 Investments, Ltd.,
2006 VT 27, 179 Vt. 409, 898 A.2d 109; In re Stowe Club Highlands, 166
Vt. 33, 687 A.2d 102 (1996); In re Stowe Club Highlands, 164 Vt. 272,
668 A.2d 1271 (1995).  The current dispute concerns a 24-acre portion of
the property designated as Parcel 1 and Lots 21, 22, and 23.  
¶ 3.            
To understand the immediate question, some background is necessary.
 The original PUD envisioned a 100-unit hotel on a 34-acre portion of the
Resort PUD identified as Parcel 1.  In 1993, the PUD was amended and
reduced Parcel 1 to 17 acres with a 21-unit hotel.  The site plan
submitted at that time and the subdivision plat for that portion of the Resort
PUD depict an inn on Parcel 1.  Parcel 1 has yet to be developed. 
Currently lots 21-23 are permitted for three single-family residential lots on
7 acres.  
¶ 4.            
In 2010, Stowe Highlands applied to amend the PUD.  Stowe Highlands
proposed to subdivide Parcel 1 into Lot 1A and Lot 1B.  Lot 1B, would be
merged with Lots 21, 22, and 23 and then subdivided into 11 new residential
lots.  Lot 1A, consisting of approximately 12 acres would continue to be
reserved as a future site for the Resort PUD’s 21-unit hotel.[2]   
¶ 5.            
The DRB denied the application to amend the subdivision plan.  The
DRB construed the previous permit as including a condition that Lot 1 would be
developed with only a hotel or resort.  The DRB found that, by seeking to
reduce the land underlying the hotel component of the Resort PUD and to build
other structures on the remainder, Stowe Highlands effectively proposed a
permit change.  The DRB applied the Stowe Club test to evaluate whether to
grant such a change.  Under this test, the Board examines whether a permit
modification is justified by: changes in factual or regulatory circumstances
beyond the permittee’s control, changes in the project’s construction or
operation not reasonably foreseeable at the time the permit was issued, or
changes in technology.  In re Stowe Club Highlands, 166 Vt. at
38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7,
13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club
test).  The DRB concluded that Stowe Highlands failed to demonstrate
unforeseeable changes in factual circumstances beyond its control that would
justify a change in the permit, and denied the application.  The Board did
not reach the issue of whether the application met the subdivision, planning,
and zoning regulations.  It also did not address a request to impose a
phasing condition that would require construction of the resort component
before construction could begin on any additional residential units.  
¶ 6.            
Stowe Highlands appealed to the Environmental Division.  24 V.S.A.
§ 4471.  The court conducted an on-the-record review.  The court
concluded that the evidence supported neither the DRB’s determination that a
Resort PUD permit condition limited Parcel 1 to exclusive development as a
hotel, nor its finding that the proposed amendment reduced that hotel
element.  The court explained that while the proposal sought to reduce the
acreage for the hotel lot so that additional residences could be built, this
did not equate to reducing the footprint of the 21-unit hotel as planned. 
Further, the court concluded that the evidence did not demonstrate that Parcel
1 was required to be dedicated solely to a hotel because, while the project
memo referred to a hotel, it did not explicitly restrict development to a hotel
only.  The court rejected the DRB’s rationale that the condition was
implicit due to no other development except for a hotel being depicted on the
plans submitted for Parcel 1.  The court explained that absent an express
permit restriction, it did not follow that the application for one permitted
use precluded the application for an additional permitted use.  Thus, the
court concluded that the Stowe Club test did not apply, and remanded the matter
to the DRB to review whether the application met the applicable planning and
zoning regulations.  
¶ 7.            
Lot owner Detora and the Town reiterate on appeal[3] that a condition of the Resort PUD
approval requires Parcel 1 to be developed solely as a hotel.  In support,
they point to the recorded plat and site plan, which depict a hotel—and no
other structure—on Parcel 1.  They also maintain, as below, that there is
substantial evidence to support the DRB’s findings that the Stowe Highlands
2010 amendment application proposed to reduce the hotel component of the Resort
PUD.  
¶ 8.            
The parties have proceeded with this appeal as if the Environmental
Division’s order was a final judgment.  In fact, the court’s decision was
interlocutory in nature because the court remanded the case back to the DRB to
conduct a merits review of the application and to consider whether to impose
phasing or engage in conditional use review.  See In re Cliffside
Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding
that environmental court’s decision remanding case to zoning board for review
was not a final judgment).  Appeals from the Environmental Division are
generally from a final judgment, and no party sought permission to take an
interlocutory appeal in this case.  Nonetheless, no party moved to dismiss
the appeal for lack of a final judgment.  Further, the issue has been
fully briefed and oral argument presented.  The appellate rules can be
suspended as a matter of discretion in the interest of judicial economy, and we
do so here and decide the issue presented.  In re Paynter 2-Lot
Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.)
(allowing suspension of appellate rules when, as here, dismissal of the appeal
“most likely would result in an appeal after final judgment”); see V.R.A.P.
2.  
¶ 9.            
Because the Environmental Division conducted an on-the-record appeal, we
apply the same standard of review.  In re Stowe Highlands Resort PUD to
PRD Application, 2009 VT 76, ¶ 7.  “We will affirm the findings of the
DRB where such findings are supported by substantial evidence, but we are
authorized to review the DRB’s legal conclusions without deference where such
conclusions are outside the DRB’s area of expertise.”  Id.
(citation omitted).  
¶ 10.        
Here, the DRB found there was “a condition of a previous approval that
the 17-acre Lot 1 will be developed with only a hotel/resort.”  The DRB
also found that Stowe Highlands’ proposal required a change of this condition
since it diminished the planned hotel site and would build something other than
the approved hotel on Parcel 1.  The Environmental Division disagreed,
noting that “nothing in the [1993] plan specifically limits the development of
Parcel 1 to that hotel or restricts development elsewhere on Parcel 1.”  In
addition, the Environmental Division explained that while a 2000 project memo
submitted in support of Stowe Highlands’ earlier approved permit refers to a
21-unit hotel on Parcel 1, “nowhere does it restrict development of that parcel
to only a hotel.”  
¶ 11.        
The Town and lot owner contend that the evidence supports the DRB
findings.  Despite no explicit limitation on Parcel 1 development, they
posit that the condition arose based on several filings submitted by Stowe
Highlands or its predecessor that identified that a hotel would be built on
Parcel 1.  In addition to the application for conditional use approval of
the 21-unit hotel which stated that an inn would be built on Parcel 1, the Town
and lot owner point to a Parcel 1 site plan depicting the inn, and a recorded
subdivision plat showing the hotel on Parcel 1.  According to the Town and
lot owner, once these plans were approved, and the plat and site plans
recorded, their depiction of the hotel only became a permit condition.  
¶ 12.        
Certainly, the requirement that a hotel or inn be built on Parcel 1 is a
condition of the permit.  This Court previously held that a resort must be
part of a Resort PUD.  In re 232511 Investments, Ltd., 2006 VT 27,
¶ 12.  That Parcel 1 must include a hotel or inn does not, however, mean
it is unavailable for any other permitted use.  No condition constrained
development of Parcel 1 to nothing other than a hotel.  As explained in
the past, limitations “ ‘that are not stated on the permit may not be imposed
on the permittee.’ ”  In re Stowe Club Highlands, 164 Vt. at
276, 668 A.2d at 1274 (quoting In re Kostenblatt, 161 Vt. 292, 299, 640
A.2d 39, 44 (1994)).  Further, although we have recognized that recorded
plats become permit conditions, id. at 276, 668 A.2d at 1275, nothing on
the recorded plat limited development on Parcel 1.[4]  To be sure, the site plan and
recorded plat both depict a hotel on Parcel 1, but the absence of any other
structure or plan at that time did not in itself preclude such additional
development.  See id. at 277, 668 A.2d at 1275 (explaining that
general designation of area on map would not be interpreted to restrict other
uses where not accompanied by other permit conditions).  The court was
correct in its assessment that no evidence supported a reading of the permit to
condition development of Parcel 1 to nothing beyond a hotel or inn.  
¶ 13.        
Further, the court was correct that the evidence did not support the
DRB’s finding that the hotel called for in the previously approved permit would
somehow be reduced via the later application to split its underlying
parcel.  The application proposed to decrease the lot size for the hotel,
but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. 
Because the proposed amendment did not require a change in a permit condition,
the Stowe Club test was not applicable, and the Environmental Division’s
reversal and remand to the DRB for further review of the application was
proper.
Affirmed.

 
 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Chief Justice Reiber was present for oral argument, but did not participate in
this decision.


[2] 
In a prior appeal involving this permit, we concluded that “a resort is a
minimum legal requirement of a Resort PUD,” and therefore Stowe Highlands could
not alter its plans to entirely eliminate the hotel component and construct
solely single-family homes.  In re 232511 Investments, 2006 VT 27,
¶¶ 13-15.


[3] 
When the Town filed its notice of appeal, it captioned it as a “cross
appeal.”  This label is incorrect.  Given that the Town’s position is
aligned with that of lot owner in seeking to reverse the decision of the
Environmental Division, the Town is an appellant in this appeal just like lot
owner.  


[4] 
Although the applicable Resort PUD standards provide a mechanism for reserving
land as open space, the plat did not so designate the area around the
hotel.  



