                                        State of Vermont
                             Superior Court—Environmental Division

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                   ENTRY REGARDING MOTION
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In re Atwood/Hood PRD Perm. Amendment                                     Docket No. 182-12-12 Vtec
Title: Cross Motions for Summary Judgment (Filing Nos. 1, 2, & 3)
Filed By: Town of Williston, Vermont (5/10/13); Appellants Bryant Hamrell and Igor Arsovski
(5/10/13); and Applicants Jeff Atwood, Dana Hood, and Brenda Hood (5/13/13).
Town’s Response in Opposition to Appellants’ Motion for Summary Judgment filed on
   5/24/2013.1
Applicants’ Response in Opposition to Appellants’ Motion for Summary Judgment filed on
  5/29/13
Appellants’ Response in Opposition to Applicants’ Motion for Summary Judgment filed on
  6/6/13
Appellants’ Response in Opposition to Town’s Motion for Summary Judgment filed on 6/6/13

    X Granted as to Appellants’ SJ Motion and Denied as to Town’s and Applicants’ Motion.

        At issue in this appeal by Bryant Hamrell and Igor Arsovski (“Appellants”) is the
decision of the Town of Williston Development Review Board (“DRB”) approving proposed
amendments to a previously permitted nine-lot subdivision by Applicants Jeff Atwood, Dana
Hood, and Brenda Hood (“Applicants”). The Town of Williston (“Town”) has amended its
zoning regulations since the date that Applicants obtained the original subdivision permit. All
parties agree that Applicants acquired vested rights in the original subdivision permit obtained
under the previous zoning bylaws. Appellants, however, argue that the changes Applicants
propose to their subdivision are so substantial that the revised proposal should be submitted as
a new application and subject to the current Williston Unified Development Bylaws (“Bylaws”)
rather than the land use regulations that were in existence at the time of the first approval. The
Town and Applicants argue that the proposed subdivision changes are insignificant and do not
affect Applicants’ vested right to have the proposed modifications considered under the prior
regulations.2
                                               Discussion
       We begin our analysis of the pending motions with the common maxim that summary
judgment may only be granted upon a showing that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a);
V.R.E.C.P. 5(a)(2). In this appeal, the parties have presented the Court with a stipulated

1 The Town titles its filing “Response to Two Motions for Summary Judgment,” but as the Town and
Applicants both favor granting the permit for the proposed changes, the focus of the Town’s filing is on
opposing Appellants’ motion.
2 Citing to two cases involving on-the-record towns, Applicants also argue that this Court should employ

a substantial evidence standard of review to the DRB’s factual findings. (Applicants’ Mot. for Summ. J. at
1-2, filed May 13, 2013.) This is not the correct legal standard in this case because the Town of Williston
has not elected to subject its DRB hearings to on-the-record review.
In re Atwood-Hood Permit Amend., No. 182-12-12 Vtec (EO on Cross Mot. for Summ. J.) (8-27-13)   Pg. 2 of 3.

statement of undisputed material facts. We commend the parties on their cooperation in
providing the Court with this stipulation, as it has eased our review of the pending motions.
Thus, this decision on cross motions for summary judgment concerns the legal question of
whether the changes that Applicants propose are so substantial that the revised proposal should
be subject to the current Bylaws rather than the land use regulations in effect at the time of the
initial subdivision approval. The Bylaws contain the controlling law in this case, as they
squarely address the issues at hand. In interpreting zoning ordinances, this Court applies the
plain meaning of the relevant provision’s text, unless that text is uncertain. In re Miserocchi,
170 Vt. 320, 324 (2000).
       Chapter 2 of the Bylaws defines vested rights and explains, “[a]ny substantial change in
the approved final plans for a development voids its vested rights,” although minor changes
may be allowed with the approval of the Zoning Administrator. Bylaws § 2.2.5. For guidance
on the topic of proposed changes, the Bylaws provide a section entitled “Changes in
Development Plans after a Permit is Approved.” Bylaws § 5.6. That section lists, as an example
of a small dimensional change that the Zoning Administrator could approve, the “shift[ing] [of]
a door, and the sidewalk leading from the parking area to that door, by a few feet in order to
accommodate a change in a proposed building’s floor plan.” Bylaws § 5.6.2.2. In contrast, the
Bylaw defines a “substantial change,” in pertinent part, as a change that alters any one or more
of several factors, including:
        •   the location, extent, or design of any required improvements, public or private,
            including, but not limited to, proposed runoff and erosion control measures, utilities,
            parking areas, driveways, roads, trails, sidewalks, street trees, and landscaped
            buffers,3 (Bylaws § 5.6.3.4);
        •   the approved number of . . . buildings, structures, [or] units (Bylaws § 5.6.3.5); or
        •   any other architectural or landscape feature that is not “minor work” as defined by
            [Bylaws §] 4.3.5.
        The parties here agree that Applicants propose to amend their permit as follows:
(1) leave the existing single family dwelling in its current location rather than moving it
westward as the original application indicates; (2) relocate a proposed duplex building from the
east side of the site to the west side of the site; (3) move the proposed triplex building from one
side of the proposed road to the other, where a duplex building had originally been proposed;
(4) add garages for the triplex building;4 and (5) shift the orientation of a second proposed
duplex building. (Stipulated Statement of Undisputed Material Facts at 3, No. 15, filed May 3,
2013.) Applicants’ Exhibit B is a site plan that superimposes the proposed changes upon the
originally approved site plan, revealing the reconfiguration of buildings on the site as well as
the relocation of portions of roadways and pathways. See attachment to Applicants’ Resp. in
Opp’n to Appellants’ Mot. for Summ. J., filed May 29, 2013.



3 This provision makes an exception for minor changes approved under Bylaws § 5.6.2.4, which in turn

states that “minor changes in the location and specifications of required improvements may be permitted.
They must be referred to and approved by the Department of Public Works before being permitted by the
Administrator.”
4  The description that Applicants provided also indicated that their revised plan would eliminate a
garage previously proposed to be placed next to the existing single family dwelling. (Stipulated
Statement of Undisputed Material Facts at 4, No. 18, filed May 3, 2013.)
In re Atwood-Hood Permit Amend., No. 182-12-12 Vtec (EO on Cross Mot. for Summ. J.) (8-27-13)            Pg. 3 of 3.

         We conclude that the changes are substantial, as that term is defined in Bylaws § 5.6.3.
The proposed changes alter the number of buildings, structures, or units that will be located on
particular lots and alter the location, extent, or design of required improvements such as roads
and pathways. The proposed changes also alter the type and placement of multiple buildings
in the subdivision in ways that do not come under the “minor work” exception in Bylaws
§ 4.3.5, which provides exceptions to the types of changes that would otherwise be deemed
substantial, such as small accessory structures of less than 120 square feet, additions of less than
1,000 square feet to existing buildings, exterior remodels of existing buildings, or site work
affecting less than 1,000 square feet.
       Applicants and the Town argue that the changes Applicants propose are insubstantial,
pointing out that the overall number of principal buildings and total units remains the same.
Similarly, Applicants and the Town provide figures about the net effect of the changes on the
overall disturbed area, building footprints, and impervious area within the subdivision as a
whole.
        While it may be true that some of the proposed amendments could have beneficial
effects when considered in the aggregate across the entire area of the subdivision, nothing in the
plain language of the Bylaws suggests that the DRB or this Court should look to net effects or
otherwise conduct a balancing test when considering the magnitude of proposed changes. To
the contrary, several portions of Bylaws § 5.6.3 emphasize that changes may be substantial
when they alter not only the extent, but also the location of various features. This language
makes practical sense; while the rearrangement of buildings within a subdivision may alter, for
example, the total impervious surface area, the changes in the location of the particular
impervious surfaces added or eliminated could create localized effects that concern specific
interested persons. Indeed, the documents filed in this case include a statement by Appellant
Arsovski explaining his concern that the proposed increase of development density near his
property and the increase in impervious surface area nearby will exacerbate water drainage
problems in his back yard. See Ex. E at 29–30, filed May 3, 2013.
                                                    Conclusion
        For the reasons detailed above, we GRANT summary judgment to Appellants and
DENY the same to the Town and to Applicants. Applicants retain the vested rights to build
according to their original plan in compliance with the regulations in effect at the time of that
application. Additionally, this decision does not preclude Applicants from seeking to amend
their original plan in ways that do not amount to substantial changes, as that term is defined in
the Bylaws.




_________________________________________                                        August 27, 2013
       Thomas S. Durkin, Judge                                                       Date
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Date copies sent: ____________                                               Clerk's Initials: _______
Copies sent to:
  Paul Gillies, Esq., attorney for the Town of Williston
  Chad Bonanni, Esq., attorney for Appellants Bryant Hamrell and Igor Arsovski
  Randolph L. Amis, Esq., attorney for Applicants Jeff Atwood, Dana Hood, and Brenda Hood
