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7 7. MAR 2 6 2012
STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION 7 VERMONT
7 _ 7 SUPER!OR CCURT
ENVIRONMENTAL DIVIS;ON

In Re Brandon Plaza Conditional 7 Docket No. 128-8-10 Vtec

. Use Permit

' Decision in On-the-Record Appeal

ln this on-the-record proceeding, a group of fourteen individuals (”Group Appellants”)
appeal a decision by the Town of Brandon Development Review Board (')the DRB”) granting a
conditional use permit to Brandon Plaza Associates, LLC (”Applicant”) for the construction of a -
commercial retail development in the Town of Brandon, Vermont involving a supermarket
parking lot, and related utilities Applicant cross~appeals, questioning the DRB's imposition of
conditions in the permit that require Applicant to reduce the size and scale of its proposed
development The 'l`oWn of Brandon (”the ToWn”) appears as an interested person in this v
' appeal 7 7 v t tr -
l Currently before the Court are principal and reply legal briefs from both Group
Appellants and Applicant. The Town has not submitted a brief. In issuing this Decision on the
merits of this on-the-record appeal from the DRB’s _decision, the Court has taken into account
the briefs submitted by the parties, the DRB’s decision of july 6, 2010 granting a conditional use
permit to Applicant, and the record from the proceeding beloW, as described in V.R.E.C.P.
5(h)(1)(A). The contents of this record have been agreed upon by all three ofrthe parties
involved in this appeal and further clarified by the Court in our August 5, 2011 ”Decision and
" Order On Pending Motions.” y ` n
ln this on-the~record dppeal, G'roup Appellants are represented by james A. Dumo`ni_:,5
Esq. and include james Leary, Kevin _Thorton, judy Bunde, Hanford Davis,- jeffrey Faber,
Maurice Racine, Philip Keyes, Beth Rand,l Helyn Anderson, AndreW Clive, Linda Stevvart, jeff
Stewart, jon Andrews, and Patt Cavanagh. Applicant is represented by Edward V.7 SchWeibert,
Esq_ and co-counsel David R. Cooper, b`sq. The ToWn is represented by james F. Carroll, Esq._

. . hack_grel_lp_d. 7
On August 29, 2009, Applicant submitted an application to the DRB for a conditional use

permit to construct a commercial retail development in the Town of Brandon, Vermont on four

parcels: 21 Nicl<erson Road and 7123,l 763, and 795 Franl<]in Str`eet. Applicant proposes to first

1

_ demolish two existing houses and the buildings associated With them as Well as existing
buildings that Were previously used for a tire business Applicant proposes to develop, on the
four parcels, a 53,000-square-foot shopping center that Will include»the following: a 36,000-
square-foot supermarket,' 12,000 square feet of in»line small stores,v a 5,000-square~foot out-
building, an approximately 295~space paved parking lot, and related utilities TWo access
points are proposed for the development a full access point off of Route ’7 and a limited access
point off of l\licl<erson Road. _ _

The DRB held nine days of public hearing on the Applicant’s permit application, the first
on September 23, 2009 and the final on May 26, 2010, upon the conclusion of Which the DRB
closed the hearing The DRB also participated in a site visit on April 2,8 2010, the same day as
the second to last day of the hearing The DRB determined that the four parcels Applican~t’ s
proposed aeveiopment spare eye eimost entirely Within the High Densiry 'Muia-Uee preiser
and that the proposed development _is a ”Commercial ll” use, a named conditional use in the
district _ n 7 _ l

On july 6, 2010, the DRB issued a decision granting a conditional use permit to
Applicant but apparently conditioning its approval for the project on, among other conditions,
the elimination -of the in-line small stores and the out-building as Well as on a reduction 1n the
parking lot to 150 spaces and elimination of the Nicl<erson Road access point Both Group
Appellants and Applicant timely appealed the DRB’ s decision to this Court. '

. Diseussion
Our review of the DRB’s decision is limited to addressing the questions raised by the v
two appealing parties in their Statement of Questions. See V.R.E.C.P. S(f) F or ease of analysis,

Group Appellants’ Statement of Questions can be paraphrased, grouped, and renumbered as

asking Whether the DRB erred by taking the follong actions: n '

1) failing to meet the requirements in the Municipal Administrative Procedures _Act that are
codified at 24 V S. A § 1204, § 1206, and § 1209,'

2) granting a conditional use permit Without making adequate findings of fact or conclusions of
lai/v specific to the requirements for conditional use approval found in both 24 V.S.A. § 4414
and the 'Brandon Land Use Ordinance (”Ordinance”), in particular the requirements of
r(_)rdinance § 202, § 608, and § 1012(b)'(2), (3), (4),> § in reaching findings and conclusions

regarding these requirements Without substantial evidence;

3) granting a conditional use permit Without making adequate findings of fact or conclusions of
law, g reaching such findings and conclusions Without substantial evidence, specific to the
reqniieinenie of ordinance § 1'03, § 302, end § 303; l

' 4) granting a conditional use permit for a project reduced in size and scale from that proposed
with no evidence about the traffic impacts from such a project; n t

5) approving a ”different version” of the project from What Applicant proposed;

6) relying upon ”hearsay information from non-testifying employees of .l_lannaford'Brothers”
about grocery store operations and'refusing to issue an order requiring the employees to
testify,' l

7) relying upon evidence based on the operation of Hannaford Brothers grocery stores but not
restricting the conditional use permit to a Hannaford Brothers grocery store;

l 7 8) relying upon the economic report and testimony offered by Mr Richard Heaps While
rejecting the testimony of Dr Nicholas Rockler,‘ _

9) relying upon testimony that the Vermont Agency of Transportation is making improvements l
to Route 7 but not imposing a condition in the permit that such improvements are required
before completion of the project; and _ .

10) relying on ’.'unspecified implied conditions to meet the standards of the ordinance.”

(Statement of Questions for Appeal by'Ap~pellants Leary et al., filed Aug. 23, 2010 (ein'phasis

omitted)). 7 n ' l n

b Applicant’ s Statement of Questions asks generally Whether the project it proposed
complies with all of the applicable criteria in the Ordinance, whether the DRB erred by IlOf
granting it a conditional use permit for the project as proposed, and Whether the DRB’S d€CiSiOh
vis supported by sufficient evidence Applicant's brief is limited to arguing that the Di\ B erred
by conditioning its approval on a reduction in the size and scale of its project and to responding

to the issues raised by Group Appellants.

I. Standard- of Review l _

ln an on-the-rec`ord appeal from a decision by. a municipal panel, our role as the
reviewing tribunal is similar to that of the Vermont Supreme C_ourtjwhen reviewing appeals
from administrative bodies. Tliat is, We do not take new evidence or complete our own
determination of the facts. lnstead, we`uphold the municipal panel’s findings of fact if they are
supported by substantial evidence in the record and review the municipal panel’ s legal ,

conclusions Without deference unless such conclusions are within their area of expertise See l_n
3

re Stowe Hi,thands Resort'PUD to PRDAQplicati@, 2009 VT 76, 11 7, 186 Vt. 568. ln examining
whether there is Substantial evidence in the record, We are not permitted to make our own
assessment Of the Credibility of Witness testimony or reweigh conflicting evidence in the record.

See ln re_Appeal Of Leil<ert, No'. 2004-213, slip op. at 2 (Vt. >Nov. 2004 term) (unpublished mem.);
Devers-Scott v. Office of Professional Regulation, 2007 VT 4{ if 6, 181 Vt. 248. We are simply to

inquire Whether the record includes relevant evidence that a ”_ reasonable person could accept . .

 

__ as adequate" Support. Devers~Scott 2007 VT 4, 11 6 (quoting'Braun_v. Bd. of Dental E><am’rs,
167 vt _110, 114 (1997)). = , ' '

' We apply this standard while addressing each of the issues raised by Group Appellants
and Applicant in their respective Staternent of Questions addressing the DRB's decision

II'. _ Conditional Use Revie'w and Performance Standards 7 _
As indicated above in issue 2, Group Appellants argue that 'the` DRB’s decision is l
deficient b€CaUSr€ it CiO€S _IlOf include adequate findings of fact and conclusions of law Specific to
the requirements fOI COD.Clitional use approval found in the applicable provisions of24 V.S.A.(
Chapt€r 117-rand the Ordin`a_nce. *Group Appe'llants also argue, as indicated in issue 1, that the
decision is deficient`because it does not meet the requirements established in the l\/iunici'pal
Administrative Procedures Act (”MAPAY’) for findings of`fact and conclusions of law. _
Turning first'to the requirements for conditional use review, 24 V.S.A. §4414(3)(A)
explicitly giV€S municipalities the_authority to adopt bylaws providing for conditional use
review Of d€Si§-’,Tlat€d US€S- Mum'¢:i'palities that elect to providec for such review must require

that fhe~d€$ignéf€d COnditiOnal uses meet five criteria:

lTlh€ PTOPOS€d conditional use shall not result in an undue adverse effect on any

of the following '

(i) The capacity of existingor planned community facilities '

(ii) The character of the area affected, as defined by the purpose or purposes of
the zoning district Within Which the project is located, and specifically stated
policies and standard of the municipal plan. '

(iii) Traffi_c on road and highways in the vicinity.

(iv) Bylaws and ordinances then in effect

(v) Utilization of renewable energy resources

24 V.S.A. § 4414(3)(A). Mimicip_alities are also explicitly authorized to adopt additional criteria,`A
including the criteria applied in` Acr 250'review. n § 4414(3)(3), (c).`
lt is clear from the Ordinance that the ToWn_has elected to adopt conditional use revieW,

codifying its criteria for such review in § 1012. Section' 1012 of the Ordinance includes the five

4

criteria from 24 V.S.A. § 4414(3)(A), employing the same language as the statute, and imposes al

sixth criterion This sixth criterion incorporates the criteria applied in Act 250 review ”providedv

that the project is not subject to Act 250 review." Ordinance § 1012(b)(6). lt appears from

Applicant’s briefs that its proposed project is subject to Act 250 review Thus, in order to grant

a conditional use permit to Applicant, the DRB had to determine that the project complies with

the first five criteria from Ordinance § 1012, and any additional provisions in the Orclinance

implicated by the fourth criterion
Furth`ermore, a munic1pality that elects to make its land use determinations subject to
on-the-record review must apply the procedural requirements established in MAPA. See 24
V,S.A. 4471(b). " MAPA requires that final decisions of municipal panels _”separately state .
findings of fact and conclusions of law.” 24 V.S.A. § 1209(a). Additionally, the findings of fact
must ”explicitly and concisely restate the underlying facts that support the decision” and be
”based exclusively on evidence” in the record ld § 1209(a), (b) The conclusions of law must '
be based ton those findings _l__d. § 1209(€). The purpose for the requirement that decisions
afforded on-the¥record review include findings of fact is largely to provide” a clear statement to
the parties and the court in the event of an appea al on what was decided and how the decision
_ Was reached. ” ln re Appeal of Leikert, No 2004-213, slip Op at 1 (Vt NOV 2004 term)
_ t (unpublished mem.) (discussing, in detail, the important functionc ‘F S€l'V€d by fmdirlg$ Of faCt).
llus Court has been cautioned against ”fill[ing] m the gaps” left by deficiei"l if d€CiS`iOI!S l<l. at Z.

_ Therefore, the question before us is whether the DRB' s decision provides findmg$ Of faCf
' and conclusions of law that address the five conditional use criteria from Ordinance § 1012 and
satisfy the applicable requirements established in MAPA._ v 7 l

Group Appellants assert that the DRB’s decision includes neither findings of fact nor
conclusions of law addressing any of the cond1tional use criteria, particularly the criteria
concerning the character of the area, traffic, and compliance with other provisions in the
Gidinance Group Appellants assert that ”there is no way to determine how or if the DRB
l determined that the conditional use criteria set by Ordinance § 1012 and by 24 V S A § 4407

_ have been satisfied ”1 (Mem.- of Law on the Merits by Appellants Leary et al 35, filed Oct 28,
2011.) Applicant responds that although the DRB’ s decision does not expressly identify which n
. findings of fact correspond to each conditional use criteria, the DRB ”left no doubt as to what it

 

1 24 V.S.A. § 4407 has been renumbered,l and the correct reference is 24 V.S.A. §4414.'
5

decided and how its decision Was reached." (Response Br.» of Brandon Plaza Ass_ocs., LLC at 35,

37,111@<1 Nov. 17, 2011.)

Ordinance § 1012(b)(1) that addresses a project's impact on existing community facilities The
_ decision lacks any finding of fact as to whichcommunity facilitiesmay be impacted, if any. The
decision does include findings of fact that the project will be served with ”public~sewer"’ and
that the ToWn has ”issued sewer capacity for the project.” In re Application #5155, Findings
and becisi@h, at 3 (rown 01 Brandon Dev. Review Bd. Juiy 6, 2010). rhe decision aiso mindes

not relate these findings of fact to conditional use review nor provide a conclusion of law
indicating whether the criterion codified in Ordmance § 1012(b)(1)'is met lnstead, the decision
relat€S these finding$ Of faCt tO P€l'fOIHiance standards that the Ordinance requires all uses to
meet-Whether conditional or not_ SQ@ Ordinance § 600. v l v
Th€ OHIY COHdi’CiOnal use criterion referenced in the DRB's decision is the criterion
codified in Ol‘£linance § 1012(b)(3) that addresses a project's impact on traffic. n See lig
Application #5155, Pindings and Decision, at 5. Even for that criterion, nowhere in its decision
l does the l)RB state whether it~concluded that the criterion is met, and it appears that the`DRB'
~ neglected to state in its decision some of its findings'o'f fact addressing traffic§

' lnshort, in order to uphold the DRB’s decision on appeal_`We Would need to assume that
the DRB did reach a positive conclusion of law as to‘each_ conditional use criteria Ld speculate
as to_ what existing findings of fact might relate to each of these absent conclusions While
Applicant urges the Court to actively reorganize and reinterpret the findings of fact that do exist
in the DRB’s decision, doing so Would be going too far. Were we to do so, this Court Would_
essentially bethe tribunal making the required findings of fact and conclusions of law relating
to conditional use approval, and that is precisely what We cannot do in an on-the»record appeal
See Leil<ert No. 2004~213, slip op. at 2. ' When a municipality elects .to make its land use

6

 

determinations subject to on-the-record review,2 itis committing to meeting the procedural
requirements in MAPA or risking the remand of its determinations and, consequently,7 the loss
of some of its earlier efforts j l

Consequently, we conclude that the DRB erred by failing to make adequate findings of
fact and conclusions of law with respect to the first five conditional use criteria established 111
Ordinance § 1012 The DRB’ s decision must be VACATED and this matter must be
REMANDED to the DRB to make separate findings of fact and conclusions of law addressing
each of the conditional use criteria, and, if necessary, hold additional hearings to collect the
evidence necessary for it to make such findings and conclusions

As discussed above in issue 2, Group Appellants also argue that the DRB's decision is
deficient in not making adequatefindings of fact and conclusions of law regarding Ordinance
§ 207 and § 608. Alternati'vely, Group Appellants argue that there is.not substantial evidence in
the record to support the DRB’s findings and conclusions regarding § 207 and § 608. 7

We turn first to Ordinance § 207 Section 207 describes ”Commercial ll Uses. ” lt states
that Commercial ll Uses are those commercial and professional uses With the potential to
impact the integrity of other districts, among other impacts 3 Ordinance § 207. Group
Appellants argue that the DRB must consider whether Applicant’ s proposed project impacts the ~
"integ.rity of other districts”_ because § 207 isimplicated through the conditional use criterion-
that requires compliance with other provisions in the Ordinance. See Ordina'nce § 1012(b)(4). ~
While Group Appellants correctly understand the conditional use criteria, they misread § 207,
Section 207 merely describes What ”Commercial ll Uses” are,' it does not, by itself or in
combination With Ordinance § 1012, regulate the impact of those uses on` the ”integrity of other
districts.” Consequently, We conclude that the DRB did_not. err by failing to include in its

decisions findings of fact and conclusions of law addressing Ordinance § 207.

 

2 The Court lacks the authority to conduct a de novo review of such a determination unless the
municipality from which'the determination originates has failed to take the steps described in 24 V S A.
§ 4471_(b) necessary to afford its land use determinations on-the-record appellate review. See ln re Grist
Mill Horse Barn Redevelopment Plan (an Ar)peal), No 89-5-09 Vtec, slip op at 1 (V t Super Ct Envtl
Div Aug 5, 2010) (Durkin, ]) (explaining that the City of Vergennes had taken the necessary steps to
make its land use determinations subject to on-the~record review and that the Court could not conduct a
de novo review of its municipal panel’s decision despite the risk that the decision would have to be _
remanded for a second time)._

3 The DRB’s decision identifies Applicant’s proposed project as a Commercial ll use_ Group Appellant_s
have not challenged that determination

7

We turn next to Ordinance § 608. Section 608 restricts the amount of noise that can be
generated at property lines to 70 decibels during the day and 60 decibels at other times. Under
Ordinance § 600, the DRB must determine that Applican_t’ s proposed project meets the
performance standard established in § 608 in order for Applicant to receive a conditional use
permit _ 7

The DRB’s decision includes the statement that ”[a]s conditioned upon the installation of '
the wooden fence, the project complies with Section 608.” ln re Application #5155, Findings
and Decision, at 7 . While this statement is included in the portion of the DRB's decision labeled
"'Findings,”’ it is a separately-stated legal conclusion. Thus, We conclude that the DRB's decision _
does include an adequate conclusion of law addressing the proposed project’s conformance
with Ordinance § 608 that meets the requirement of 24 V S A § 1209 (MAPA) We must next
determine whether the DRB’s decision also includes adequate findings of fact that support this
conclusion of law and that are, in turn, supported by substantial evidence in the record

The DRB made the following findings of fact in support o_f its legal conclusion that the
proposed project complies With § 608c Applicant is proposing a wooden fence that will serve as
a noise barrier, delivery trucks will be prohibited from idling, and ”[tjhere will be no noise
which exceeds 70 decibels during daylight hours or 60 decibels at other times of the day at the
property line. ” ln re App_lication #5155, Findings and Decision, at 7. \/Vhile these statements do "
not provide the level of detail We Want municipal panels to strive for when making findings of -
fact, the statements are separately-stated findings that ”explicitly and concisely restate the l
underlying facts that support the decision.” 24 V.S.A._ § 1209(a), (b). lhus, we conclude that the
DRB’s decision does include adequate findings of fact addressing Ordinance § 608 that meet the `

requirements of 24 V.S.A. § 1209 (MAPA) We further conclude that, if these findings are

supported by substantial evidence in the record, they support the DRB s legal conclusion that

' the proposed project complies with § 608. k _

We therefore look to the record to determine whether it includes substantial evidence

supporting the DRB’s findings We conclude that it does. 'l’he' record includes a noise

evaluation performed .by '\_/'anasse Hangen Brustlin, lnc and expert testimony from their

n . Director_of Air Quality and l\loise Services Who oversaw the.modeling for the evaluation (See
Exhibits 57 and 72,) 'l'h'e testimony describes how ten receptor locations were selected for noise ,
modeling, discusses the accuracy of the model employed, and concludes that the noise that Will
be generated from Applicant’s proposed project Will be within the decibel limits established by ,
8

Ordinance § 608. Group Appellants argue that the evaluation is_ deficient mainly because it
does not model noise generation from snow-removal trucks or select a particular location to
model along Applicant’s eastern property line. Group Appellants raised these concerns in their
n cross-examination of Applicanth expert However, they offered no expert Witness of their oWn.

5 A_ reasonable person could determine that the evidence in the record adequately
supports the DRB's findings of fact regarding Ordinance -§ 608. See Devers~Scott v. Office of
Professional Regulation,. 2007 VT 4, ii 6, 181 Vt. 248. Therefore, We conclude that there is
substantial evidence in the record to support the DRB’s findings of fact related to the
requirements of Ordinance § 608 and that these findings support the DRB's legal conclusion
that the proposed~project complies With § 608. The DRB did not err in determining that
Applicant’s proposed project complies With § 608.

III; n Disti'ict-Specific Land Use Re'gulations g

As summarized above in issue 3, Group Appellants pose the same challenge to the
DRB’s decision concerning its determinations regarding Ordinance § 103, § 302, and § 303 as
they do for its determination regarding the conditional use criteria. That is, Group Appellants
principally assert that the DRB's decision is deficient because it does not include adequate
findings of fact and conclusions of law addressing these sections of the Qrdinance

~Section 103'of the Ordinance speaks to how the Ordinance is to be interpreted and
applied by the DRB and other decision makers lt states that the interpretation and application
of the Ord_inance should both take into account the niles of construction established by the
Vermont Supreme Court and conform 'With Ordinance § 102, Which establishes the stated
purpose for_the Ordinance. See Ordinance § 103. 'l`he DRB should be guided by Ordinance '
_ § 102 and § 103 When interpreting and applying the specific provisions of the Ordinance that '_
must be met before an application for a conditional use permit can be approved 1'he DRB’sA
decision, however, need not include findings _of fact and conclusions of law regarding
compliance With these sections Thus, We conclude that the D_RB did not err by failing to
include in its decision findings of fact and conclusions of law specific to Ordinance § 103 n

Turning to Ordinance § 302 and § 303, each establishes the land use regulations specific
to one of the Tovvn’ s zoning districts,-Which the Or_dinance refers to as land use districts See
Ordinance_- § 300. Section 302 establishes the regulations specific to the Central Business Distric`t
and § 303 establishes the regulations specific to the High `Density Multi-Use Distii'ct.

Only § 303 is applicable to Appli`cant's proposed project The DRB"s decision indicates
that Applicant’s subject property is almost entirely Within the High Density l\/iulti-Use District
and neither the DRB nor any party, including Group Appellants, asserts that any portion is
§ zoned as Central Business District Group Appellants instead argue that § 302 is implicated by

the reference to impacts on other districts in Ordinance § 207 As explained above, Ordinance v
§ 207 defines Commercial ll uses, the type of use Applicant is proposing; it does not provide
regulatory language that makes Ordinance` § 302 applicable to Applicant' s proposed project
Consequently, We conclude that the DRB did not err by failing to include in its decision findings
of fact and conclusions of law addressing Ordinance § 302 g
Group Appellants are correct, however, that the DRB' s decision d_id need to include
findings of fact and conclusions of law specific to the land use regulations established in
Ordinance § 303, Section 303 indicates that Commercial ll"Uses are conditionaluses in the High
Density Multi-Use District, describes the purpose of the district, and sets restrictions for
development'in the district, such as the maximum building height and minimumlot size As is
the case systemically throughout the DRB’s decision, the findings of fact and conclusions of law
that do exist regarding compliance With the land use regulations` in § 303 are grouped together
in a section labeled , ”Findings” 'l'his exacerbates the problem Group Appellants correctly
_- identify: that the findings of fact and conclusions of law addressing compliance With § 303 are -
not adequate to meet the requirements of 24 V._S.A. § 1209 (MAPA).' Although each requirement
_ in § 303 is referenced and addressed in the decision, for most of these requirements the decision
only includes one or the other-a factual finding or a legal conclusion-but not both. Bc)th are
l necessary under MAPA See 24 V S. A § 1209(a) 3 n _ l -

Because We are remanding this matter to the DRB, and because it appears that the DRB
neglected to state in its decision some of the findings of fact and mathematical calculations it
_ completed When applying the requirements of Ordinance § 303, it Would be inefficient to, at this n
juncture, attempt an examination of the record for substantial evidence in support of_ the v
findings that are present in the DRB’ s decision, On remand, the DRB should make separate
findings of fact and conclusions of law addressing each of the land use regulations established
l in Ordinance § 303, and, if necessary, hold additional hearings to collect the evidence necessary
for it to make such findings and conclusions

lt is also important to note, as G_roup Appellants point out, that § 303 is also implicated
by the conditional use criterion that addresses a project’s impact on the character of the area.

10

See Ordinance § 1012(1)) (2). The ”character of the area” is defined in part by the purpose of the
zoning district in Which the project is located, and no one disputes that the relevant'piirpose
here is that which is established in § 303(a) for the High Density Multi~UseDistrict. See i_d,,' 24
» V.S.'A. § 4414(3)(A). Thus, on remand,_ the DRB should also make adequate findings of fact and

conclusions of law addressing § 303(a) in the context of this conditional use criterion

IV. Approval of a Srnaller, Scaled-Down Proiect b _

v Both Group Appellants, as indicated above in issues _4 and 5, and Applicant. maintain _
that the DRB erred in granting Applicant a conditional use permit for a smaller, scalededown
commercial retail development from that which Applicant proposed Group Appellants assert
that the DRB erred by approving a ”different version” of the project from what Applicant ~'
-propos‘ed'and by approving the scaled-down version without evidence of the traffic impacts
from the reduced version. (Stateme'nt of 'Quesuons for Appeal~by Appellants Leary et al-. 1, filed
Aug. 23, 2010). Applicant asserts that the DRB erred by conditioning its approval on a

n reduction in the size and scale of the project and asks the Court to issue a decisiona approving its
project as proposed, without such conditions attached
v The- DRB's decision is most accurately characterized as granting a conditional use permit
to Applicant to construct the comme ercial retail development it proposed, subject to the
following conditions, among others: elimination of the proposed in-line small stores and out-
building, reduction in the proposed parking lot to 150 spaces, and elimination of the proposed
Nickerson Road access point lt is not clear, however, what findings of fact and conclusions of -
law the DRB reached that lead it to first, require these reductions in the size and scale of the
project, and second, to approve the_project subject to these'_reductions. The statement that
appears to be the crux of the DRB’s reasoning for imposing these conditions is that ”[t]he [DRB}
finds the size and scope of the proposed project to be too large.f' ln re Application #5155,
Findings and Decision, at 2. 'l`his statement is neither a factual finding nor a legal conclusion
that we can review. v l di ~

Without separately-stated findings of fact and conclusions of law that provide a
transparent recitation of the reasons the DRB included such conditions in its grant of a -
conditional use permit to Applicant, We cannot determine whether the DRB erred in imposing '
such conditions On remand, if the DRB ultimately decides to grant Applicant a conditional use
permit subject to conditions reducing the size and scale of the project, the DRB must include in

its decision findings of fact and conclusions of law that support such conditions
11

Additionally, because this is an non-the-record appeal and in light of the content of the
decision before us, We cannot simply, as Applicant requests, issue a decision approving
Applicant’ s project as proposed without such conditions As discussed in the sections above,
we must remand the DRB' s decision for further findings of fact and conclusions of law
addressing the standards in the Ordinance that Applicant’ s proposed project must meet in
order to receive a conditional use permit ln order to issue a decision approving Applicant’ s-
project as proposed in this circumstance We Would need to engage in a de novo review_ _we
would need to look at Applicant’ s application anew and make our OWn findings of fact and
conclusions of law addressing each of the standards that mustl;, 9 met We Cann@t do this gee .
ln re Appeal of Leikert t, No. 2004-213, slip op at 2 (V t NOV_ 2004 term) (iinpiiblished mem)
Our review in this on-the-record appeal is limited_’ go upholding the DRB'S findings of fact if
they are supported by substantial evidence in the record and determining Whether the DRB’s
n legal COnClUSIOnS Bl‘.€ SUPPOrf€d by th%se findings See ln re Stowe Highlands Resort PUD to
PRD Application, 2009 VT 7_6, il"’ /, 186 Vt. 568.

V. Evidentiag Concerns

As summarized above in issues 6, 7, 8, and 9, Group Appellants also raise a number of
evidentiary concerns with the DRB’ s decision, They argue tha at the DRB erred by reaching a'
decision in reliance upon hearsay addressing grocery store operations, on evidence about the
operation of only Hannaford Brothers grocery stores, on the economic report and testimony of
MI.' RiChard H€ap$, and 011 representations about planned street improvements by the Vermont
. Agency of Transportation. Groiip Appellants also argue, as indicated in issue 1 above, that the

DRB failed fO COmPlY With some of the procedural requirements established in MAPA (24
`V.S.A. § 1204 and § 1206) Which apply to municipal land use determinations that Will be
afforded on-the~record revieW. _ n _
Group Appellants are correct that a municipality that elects to 'make its land use
determinations subject to on-the-record review must apply the procedural requirements
established in MAPA, including the notice and hearing rules established in 24 V S A. § 1204 and k
the evidentiary rules established in 24 VSA § 1206. See 24 V..SA. 4471(b). Section 1206
requires such municipalities to follow the Vermont Rules of Evidence when addressing land use
proposals See 24 V.,SA § 1206(b) (”The rules of evidence as applied in civil cases in the"
superior courts of this state shall be followed ”). E)<cept for a limited number of exceptions, the

Vermont Rules of Evidence prohibit the admission of testimony that is hearsay, or a statement
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offered by a Witness ”to`prove_ the truth of the matter asserted” that is not made by the Witness `
at trial (i.e., that is'an out-of-court statement)t V.R.l~l. 801, 802. Hearsay can come in the form of
a written document used by a Witness to assert the truth of what the document states'.4 See
Towle v. St. Albans Publisliing Co., 122 Vt. 134, 138-39 (1960) (holding that the trial court had
erred by allowing into evidence a letter Written by anon-testifying individual where the letter

was submitted to prove the truth of its assertions and the letter did not fall Within any of the

 

exceptions allowing hearsay to be admitted); Green v Peacocl< No 2008-232, slip op. at 3 (Vt
_ Nov term 2008) (unpublished mem.). ` '

MA_PA gives a municipal panel the discretion to admit evidence not admissible under
the Vermont _Rules of Evidence during a proceeding regarding a land use determination if the
evidence is the ”type commonly relied upon by reasonably prudent people in_the conduct of
their affairs" an_d if its admission is ”necessary to ascertain facts not reasonably susceptible of
proof under” the Vermont Rules of Evidence. 24 V.SlA. § 1206(b); see also 3 V.S.A. § 810(1)

g (incorporating the same relaxed standard for the admission of evidence in the context of
hearings held by state administrative bodies); ln re Petition of 'Central Vt. Public Service Corp., v v
141 Vt 284, 292-93 (1982) (noting that 3 VVS A § 810(1) incorporates a discretionary standard
that allows for the admission of more evidence than is normally admissible in court hearings).

One of Group Appellants’ arguments is that the DRB erred by relying upon ”hearsay 7
information from non-testifying employees _ of Hannaford Bro_thers” about grocery store
operations and refusing to issue an order requiring the employees to testify. _(Stateinent of
Q'uestions' for Appeal by Appellants Leary et al., filed Aug. 23, 2010 (emphasis omitted).)
Specifically, Group Appellants argue that two of Applicant’s employees, Bill McCaloe and
Richard Heaps, testified about information regarding grocery store operations that Hannaford
Brothers’ employees had conveyed to. them. Group Appellants also argue"that Applicant
offered into evidence a letter Written by Bill McCabe that was based on this same information n 7

' Based on the record before us, it does appear that the testimony and letter to Which
Group Appellants object did include hearsay as they both referenced out-of-court statements
made by non~testifying Hannaford Brothers’ employees and referenced the statements to prove

the truth,of the statements' c'ontent. (See Exhibits 55, 71, 72, and 73.) lf this evidence meets one

 

4 Hearsay includes documents not authored by the Witness as Well as documents the Witness did author
The latter documents may be admissible under the ”recorded recollection” exception found in V.R.E.
803(5) that allows the admission of documents ”concerning a matter about Which a Witness once had
knowledge but now has insufficient recollection to enable him to testify fully and accurately,”

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of the exceptions to hearsay referenced in V.R.E. 802, or the discretionary evidentiary standard
that applies in the DRB’s proceeding under 24 V.S.A. § 1206(b), then it was admissible. The
Court, however, does not make a determination as to whether the evidence Was admissible
because it is largely unclear, from the decision and record before us, whether the DRB relied
upon this particular evidence, and, if it did, Whether the DRB applied an exception or its
v discretion in admitting the evidence. As we must remand this matter for the DRB_ to make
further findings of fact and conclusions of laW, and to possibly hold additional hearings, the
DRB Will have an opportunity to consider the merit of Group Appellants’ concern regarding
inadmissible hearsay _ _ `

.' Two of the other evidentiary arguments that Group`Appellants make are that the DRB
erred by relying upon evidence about the operation of Hannaford Brothers grocery stores (but
not restricting the conditional use permit it issued to Applicant to a Hann`aford 'Brothers grocery '
store),'a_nd by relying upon the economic report and-testimony offered by Mr. Richard l_leaps
While rejecting the testimony of Dr. Nicholas Rocl<ler. ln response to these two arguments we
remind Croup Appellants that our review of evidence in this on-the-record appeal is`limited to
_ determining whether there is substantial evidence in the record to support the DRB's findings
of fact. See Stowe Highlands Resort PUD to PRD Application, 2009 VT 76,1l 7 We are not
permitted to make our own assessment of the credibility of witness testimony or reweigh
conflicting evidence in the record. See Appeal of Leikert t, No. 2004-213,#slip op. at 2,' D;eve_rs~
Scott v._Office-of Professional Regulation,»2007 VT 4, jj 6, 181 Vt. 248. ltis unclear the extent to,
Which Group Appellants’ two arguments here simply ask us to.reweigh the evidence presented
to the DRB or'Whether they do raise a specific challenge as to Whether there is evidence in*the
record supporting particular findings of fact. Because we must remand this matter for the»DRB
to'make further findings of fact, the DRB Will have an opportunity to consider the'merit of these
two arguments , ' - -

The final evidentiary argument raised by Group Appellants is that the DRB erred by `
relying upon testimony that the Vermont Agency of Transportation is making improvements to
Route 7 but not imposing a condition in Applicant’s conditional use permit that such v
improvements are required before completion of the project lt is unclear, from the decision
before us, whether the DRB relied upon this particular evidence As We must remand this
matter for the _DRB to make further findings of fact and conclusions of law, and to possibly hold

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additional hearings, the DRB will have the opportunity to consider the merit of this evidentiary
challenge as well. ' 7
vi implied conditions -

Finally, as indicated above in issue 10, Group Appellants argue that the DRB’s decision
relies on ”unspecified implied conditions to meet the standards of the ordinance.” (Statement
of Questions for Appeal by Appellants Leary net al. 7, filed Aug. 23, 2010). Group Appellants,
however, appear to misunderstand the law that requires conditions in municipal land used
permits to be explicit v l n l l v

To be enforceable conditions included in a municipal land use permit must be explicit
and clear,' they must give the landowner notice of the limitations included in a permit approval

See ln re Kostenblatt 161 Vt. 292, 298-99 (1994) (”Conditions that are not stated on the permit

 

may not be imposed on the permittee’ ’.) Group Appellants argue that because of the lack of
adequate findings of fact and conclusions of law in the DRB’ s decision, the’ reader 7 of the
decision cannot tell the extent to which the DRB relied on, ..implied conditions ” fl\/lem of
Law on the Merits by Appellants Leary et al 42,- filed Oct 29, 2011.) While the guidance

provided by Kostenblatt and the cases following it, are important for municipal panels to note

 

when issuing land use permits, no party here is attempting to enforce an implied condition in
an existing permit held by Applicant. _ _

As indicated above, We are remanding this matter to the DRB to make further findings `
of fact and conclusions of law. 'l'his may resolve What appears to be at the core of Group
Appellants’ concern about 'unspecified implied conditions": that it is unclear from the DRB’ s
decision if and how the DRB determined that Applicant’s project, subject to conditions or not, '
conforms with the standards in the Ordinance that it must meet in order to receive a conditional
' use permit l l

_ Conclusion

For the reasons detailed above, we conclude that the DRB’s decision granting Applicant
a conditional use permit for the construction of a commercial retail development lacks v
separately-stated findings of fact and conclusions of law adequate to meet the requirements of
24 V 5 A § 1209 or MAPA Specifically, the decision fails to provide adequate findings of fact
and conclusions of law addressing the five conditional use criteria established in Ordinance

§ 1012 that apply to Applicant’ s proposed project lt also fails to provide adequate findings and

15

conclusions addressing each of the land use regulations established in Ordinance §303 for
development in the High Density Multi-Use District. 'These deficiencies within the Written
decision also prevent the Court from determining Whether the conditions imposed by the DRB
that require a reduction in the size and scale of Applicant’s project are factually and legally
supported l
t ln response to the remainder of the concerns raised by Group Appellants, we conclude
the following: 1) the DRB's decision does include adequate findings of fact and conclusions of
law addressing Ordinan'ce § 608, the findings are supported by substantial-evidence in the
record, and the findings support the DRB's legal conclusion that Applicant’s proposed project v
complies With § 608,' 2) the DRB’s decision does not need to include findings of fact and
conclusions of law addressing Ordinance §§ 103, 207, 302; and 3) remand of this matter may
address Group Appellants’ concern that the decision includes unspecified implied conditions.”
We leave the DRB to consider the merit of the evidentiary concerns raised by Group Appellants
Consequently, We APFIRM in part and VAC_ATE in part the DRB‘s decision on appeal
and REM_AND the matter to the DRB'to make separate findings of fact and conclusions of law n
consistent with this Decision that Will allow it to determine Whether Applicant should be
granted a conditional use permit under the standards established by the Ordinance. The DRB
k _ kmay hold additional hearings, if necessary, to collect the evidence it needs to make such
findings and conclusions v l
Done at Berlin, Vermont this 26th day of March, 2012. _
lhon/iaso,G%Wals€i\jA/%
Environmental ]ud ge

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