                                 STATE OF VERMONT

                             ENVIRONMENTAL COURT

                                                      }
In re: Dodge Farm Community, LLC, Concept Plan        }     Docket No. 155-7-07 Vtec
        (Appeal of Burns)                             }
                                                      }

             Decision and Order on Cross-Motions for Summary Judgment

      Appellants Catherine and Legrand Burns appealed from a decision of the

Development Review Board (DRB) of the Town of Berlin, granting concept plan approval

to Appellee-Applicant Dodge Farm Community, LLC (Applicant) for its proposed Planned

Unit Development. Appellants are represented by L. Brooke Dingledine, Esq.; Applicant

is represented by Richard W. Darby, Esq. and Christopher J. Nordle, Esq.; and the Town

is represented by Robert Halpert, Esq. Interested persons Romeo J. and Valerie D. Cyr

have entered an appearance representing themselves.

      Applicant Dodge Farm has moved for summary judgment on Questions 2, 3, and

4 of the Statement of Questions; Appellants have moved for summary judgment on all the

Questions in the Statement of Questions. The Town and interested persons Cyr have not

filed any memoranda addressing the motions for summary judgment. In this de novo

appeal, the Court must apply the substantive standards that were applicable before the

DRB. 10 V.S.A. § 8504(h), V.R.E.C.P. 5(g).



      The parties provided the Zoning Regulations adopted in 2005. For the purpose only

of comparison for the analysis in footnote 1, below, the Court has used a copy of the

Zoning Bylaws last amended in 2002, taken from an unrelated closed case. The following

facts are undisputed unless otherwise noted.




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       Applicant owns an approximately 300-acre property located at the southerly end of

the Knapp State Airport in Berlin. Four-fifths of the property (243.5 acres – “the Southerly

Project Property”) is located southerly of the airport runway and southerly of Scott Hill

Road and Airport Road, with frontage along both roads. An air easement benefitting the

airport extends over some of the project property to the south of the runway. The

remaining 62.2 acre portion of the property (“the Northerly Project Property”) is located

northeasterly of the airport runway and northerly of Airport Road, with frontage along

Airport Road.

       Portions of the property are located in each of three zoning districts. The Southerly

Project Property contains 61 acres of land in the Rural Residential zoning district, located

in an L shape along the road frontage and along the property’s easterly boundary. The

remaining 182-acre portion of the Southerly Project Property is located in the Highland

Conservation zoning district. Appellants’ residence is located within a large parcel of land,

westerly of the project property, also within the Highland Conservation zoning district and

with access to Scott Hill Road.

       A narrow Light Industrial zoning district extends easterly from the boundary of the

airport. The Northerly Project Property northerly of the road contains 47 acres of land in

the Light Industrial zoning district, and an additional 16 acres of land in the Rural

Residential zoning district.

       Applicant proposes to create a clustered co-housing development in which most of

the acreage of the project property would be maintained in agricultural or

recreational/open space use. The proposal is proposed to involve two clusters of housing

units held in condominium ownership, with a common community center, common areas

and agricultural, recreational and other unimproved lands held in common. The former

owner of the property retains the right to continue to reside in his house on the property.

       The term “planned unit development” is defined in the state statute as land “to be



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developed as a single entity, the plan for which may propose any authorized combination

of density or intensity transfers or increases, as well as the mixing of land uses.” 24 V.S.A.

§ 4303(19). Applicant has applied under the Planned Unit1 Development (PUD) provisions

in § 4.10 of the 2005 Zoning Regulations, which requires approval of any deviations from

the Zoning Regulations under the standards in § 4.10, requires site plan approval under §

5.05, and requires application concurrent with subdivision review under the Subdivision

Regulations.

       Under § 300 of the Subdivision Regulations, “[b]efore submitting a formal

application” a subdivider is required to submit a concept plan. Concept plan review “is

intended to be an informal exchange of ideas between the applicant and the [Planning]

Commission. Presentations, and suggestions, and comments of any party are not binding.”

Subdivision Regulations, § 300. Compare discussion of “sketch plan” application, In re

Champlain Oil Co., 2004 VT 44, ¶ 12, 176 Vt. 458, 461–62.

       The DRB reviews concept plans for their conformance with the applicable

regulations and the Town Plan, and it may offer recommendations to be incorporated in

subsequent submissions. Subdivision Regulations § 310. The consequence of concept plan

approval is simply that the applicant may proceed to the next step in the subdivision

review process, that of preliminary plan review. Subdivision Regulations §§ 320, 330.

       Applicant proposes two clusters of housing on the property, with the remainder



       1
         Planned unit developments may include a mix of residential uses, nonresidential
uses, or both, while planned residential developments contemplated only include a mix of
residential uses (and their accessory uses). Compare, the former statute’s authorization
of planned residential developments in 24 V.S.A. § 4407(3) (2004) separately from its
authorization of planned unit developments in 24 V.S.A. § 4407(12) (2004). Section 4.10 of
the prior Zoning Bylaw had been entitled Planned Residential Development, which may
explain some of the residual references in § 4.10 and elsewhere in the Zoning Regulations
to that term. The present statute’s enabling authority for planned unit developments is
found in 24 V.S.A. § 4417, which is referred to in § 4.10.

                                              3
largely proposed to remain in agriculture or as forested land. One cluster of housing units,

labeled “Cluster B,” is proposed to be located in the Rural Residential and Light Industrial

zoning districts, in the northeastern area of the Northerly Project Property. Cluster B is

proposed to contain 30 housing units, with access to Airport Road by an approximately

1500-foot-long access roadway. A plant nursery is proposed for the portion of the

Northerly Project Property near Airport Road, with several horse or walking trails

extending through the property.

       The other cluster of housing units, labeled “Cluster C,” is proposed to be located

in the Highland Conservation zoning district, near the westerly boundary of the Southerly

Project Property. Thirty-four housing units are proposed for Cluster C, with access to Scott

Hill Road by an approximately 1200 foot long access roadway. Most of the housing units

in Cluster C are proposed to surround a central “green” and a “common house,” with

seven other units located farther to the south near a garden area. A trail or path for

walking or horses is also proposed for the Southerly Project Property.



       Section 4.10(D) establishes standards for the approval of PUDs. The first of two

subsections numbered as subsection (2)2 states in full that:

       The use may be for residential and non-residential units and must be a
       prescribed use for the district in which it is located.

       The parties do not disagree that the phrase “a prescribed use for the district” means

that the use is allowed either as a permitted or a conditional use in the particular district.

However, the parties disagree as to whether § 4.10(D)(21) allows PUDs to be composed of

a mix of land uses, all of which must be uses otherwise separately allowed in the district,

or whether, as argued by Appellants, the district must list “planned unit development” as

a listed use in order for a project to be considered as a PUD.



       2
           This section will be cited as § 4.10(D)(21) to distinguish it from the second one.

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       In fact, none of the district regulations list the use category of “planned unit3

developments“ either as a conditional use or as a permitted use in any district. Therefore,

an interpretation of § 4.10(D)(21) that required PUDs themselves to be a listed use in all

three districts would render the entirety of § 4.10 surplusage. Like statutes, zoning

ordinances are to be interpreted to give effect to the intent of the legislative body, to further

fair and rational consequences, and to avoid surplusage and absurd results. In re: Kim

Wong Notices of Violation, Docket Nos. 169-7-06 Vtec and 293-12-06 Vtec, slip op. at 2 (Vt.

Envtl. Ct. Mar. 12, 2007); Loiselle v. Barsalow, 2006 VT 61, ¶16, 180 Vt. 531, 534; Judicial

Watch, Inc. v. State, 2005 VT 108, ¶¶ 14, 16, 179 Vt. 214, 220–222.

       On the other hand, a reading of the regulation that instead examines the component

uses proposed for the PUD avoids an absurd result, avoids rendering any part of the

regulation mere surplusage, and comports with a plain reading of § 4.10(D)(21) in the

context of the ordinance’s and statute’s provision for planned unit developments. PUDs

are a tool allowing for mixed uses and flexible or clustered development. Zoning

Regulations § 4.10(B). Despite this flexibility, a goal of zoning remains to phase out

nonconforming uses and to avoid creating new nonconforming uses. In re Miserocchi, 170

Vt. 320, 327 (2000).    If § 4.10(D)(21) is read to refer to the component uses within a

proposed PUD, it achieves the goal of providing for mixed uses and allowed alterations to

the otherwise-required dimensional standards, without creating any new non-conforming

uses in the district.

       This interpretation also makes it unnecessary to determine whether the use category

of PUDs could be applied for as a conditional use in each district, because each district’s use



       3
        Planned residential developments are listed specifically as a conditional use in
only two of the residential zoning districts: the Rural Residential zoning district and the
Medium-Density Residential zoning district, which would mean that in those districts such
proposals would have to meet the conditional use standards of § 5.06, as well as the other
standards that would have to be met for PUDs.

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table allows the DRB to consider uses as conditional uses if they are not listed but are “of

the same general character as those permitted or allowed as conditional uses in the

district.” Zoning Regulations Tables 2.01, 2.03, 2.08. If PUDs had to be considered under

these provisions, the DRB would be comparing them to their component uses in any event.

       In the present case, the agricultural and forest uses, one- and two-family dwelling,

and private club or common accessory building are allowed uses in all three of the zoning

districts.   Zoning Regulations Tables 2.01, 2.03, 2.08.      Therefore, under § 4.10(D)(21),

Applicant may proceed with its application as a Planned Unit Development.



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

Appellants’ Motion for Summary Judgment is DENIED and Appellee-Applicant’s Motion

for Summary Judgment is GRANTED, that the proposed project may be applied for as a

PUD.

       At a telephone conference in this matter, the parties agreed that the merits of the

concept plan, that is, Question 1 of the Statement of Questions, should not be litigated

separately but should be folded in to the following stages of the application, as the plan

itself may be expected to change during the next stage of review. Accordingly, a telephone

conference has been scheduled (see enclosed notice) to discuss the next steps in this matter

and whether mediation would be useful at this stage of the proceedings, or whether this

appeal may be closed with leave to the parties to raise any remaining issues if an appeal

is filed of any later stage of the plans for this property.


       Done at Berlin, Vermont, this 24th day of March, 2008.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge

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