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@vermont.gov 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.


                                          2020 VT 15

                                          No. 2019-122

In re Snyder Group, Inc. PUD Final Plat                        Supreme Court

                                                               On Appeal from
                                                               Superior Court,
                                                               Environmental Division

                                                               September Term, 2019


Thomas S. Durkin, J.

Matthew B. Byrne of Gravel & Shea PC, Burlington, for Appellants Snyder Group, Inc.,
 Spear Meadows, Inc., 1350 Spear, LLC, and Gary Farrell.

Daniel A. Seff of MSK Attorneys, Burlington, for Appellees/Cross-Appellants Mary Scollins,
 Michael Scollins, Marley Skiff, Robert Skiff and the Pinnacle at Spear Homeowners
 Association.


PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.),
         Specially Assigned


       ¶ 1.    REIBER, C.J.       Applicant, the Snyder Group, Inc., which initially obtained

approval from the City of South Burlington Development Review Board (DRB) to construct a

planned unit development (PUD), appeals the Environmental Division’s summary judgment

rulings that the City’s governing zoning bylaw concerning the transfer of development rights

(TDRs) with respect to PUD applications does not comply with two subsections of the enabling

statute and is unconstitutionally vague. Neighbors, as interested parties opposing the PUD, cross-

appeal with respect to the Environmental Division’s rulings that the TDR bylaw complies with

three subsections of the enabling statute. We uphold the rulings challenged by neighbors, reverse
the rulings challenged by applicant, and remand the matter for Environmental Division to enter

summary judgment in favor of applicant.

       ¶ 2.    The material facts are undisputed. In April 2017, applicant submitted a subdivision

application to construct a PUD on a 25.93-acre parcel in the City’s Southeast Quadrant

Neighborhood Residential (SEQ-NR) Zoning District.1 Applicant proposed to raze one single-

family dwelling and to construct eighteen single-family dwellings, three three-unit multi-family

dwellings, and ten two-family dwellings. The forty-eight-unit PUD proposal includes seventeen

units of TDRs from a separate parcel known as the Bread and Butter Farm.

       ¶ 3.    Following a public hearing, the DRB granted final plat approval in a twenty-two-

page decision that reviewed PUD and site-plan standards and criteria. The DRB determined that

the density of the proposed PUD complied with the City’s governing land development

regulations, including the regulations allowing TDRs for PUDs.

       ¶ 4.    Neighbors appealed to the Environmental Division, arguing, in relevant part, that

the City’s TDR bylaw2 violated its enabling statute and was unconstitutionally vague, rendering it

invalid and unenforceable. In response to neighbors’ and applicant’s cross-motions for summary

judgment, the Environmental Division ruled in a February 2019 decision that the TDR bylaw did

not comply with two subsections of the enabling statute and was unconstitutionally vague.

Summary judgment is appropriate “if the movant shows 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); see

V.R.E.C.P. 5(a)(2) (providing, in relevant part, that rules of civil procedure are applicable in



       1
          There are six subdistricts in the City’s Southeast Quadrant district: SEQ-NRP (natural
resources protection); SEQ-NRT (neighborhood residential transition); SEQ-NR (neighborhood
residential); SEQ-NRN (neighborhood residential north); SEQ-VR (village residential); and SEQ-
VC (village commercial).
       2
           Like the Environmental Division, we refer to the relevant land development regulations
in this case as the TDR bylaw.
                                                2
proceedings before Environmental Division except as otherwise modified). “The party opposing

summary judgment is given the benefit of all reasonable doubts and inferences” with respect to

the facts. State of Vt. Agency of Nat. Res. v. Parkway Cleaners, 2019 VT 21, ¶ 11, ___ Vt. ___,

210 A.3d 445 (quotation omitted).

       ¶ 5.    Applicant appeals, challenging both rulings, and neighbors cross-appeal, arguing

that the bylaw does not comply with any of the enabling statute’s five subsections, in addition to

being unconstitutionally vague. The City was a party in the Environmental Division proceedings

but did not file a notice of appeal from the Environmental Division’s rulings. Nevertheless, the

City has filed two appellate briefs, the first one labeled an appellee’s brief and the second one an

appellee’s brief “in Cross-Appeal.” Even though the briefs were filed as appellee’s briefs, they

both take a position consistent with applicant’s in support of the validity and constitutionality of

the TDR bylaw and contrary to the Environmental Division’s judgment.

       ¶ 6.    Neighbors have filed motions to strike the briefs and dismiss the City’s appeal. The

City counters that it is not raising new issues but simply commenting on issues raised by the

appealing parties. Because the City did not file a notice of appeal, there is no appeal to dismiss.

For the following reasons, however, we grant neighbors’ motion to strike the City’s briefs. First,

the City is not an appellee but rather a party aligned with applicant—the appellant in this appeal.

See Appellee, Black’s Law Dictionary (11th ed. 2019) (defining appellee as “party against whom

an appeal is taken and whose role is to respond to that appeal, usu. seeking affirmance of the lower

court’s decision”); 16A C. Wright et al., Federal Practice and Procedure § 3950.7, at 498 (5th ed.

2019) (“In general parlance, a cross-appeal is one filed by the appellee against the first or only

appellant. A separate appeal is an appeal filed by any party other than the first appellant or

appellee.”); see also Ark. Cty. v. Desha Cty., 27 S.W.3d 379, 382 (Ark. 2000) (striking utility

commission’s brief where commission “failed to file either a notice of appeal or cross-appeal and



                                                 3
yet filed a brief [as an appellee’s brief] advancing the appellant’s arguments too late to give the

remaining appellees an opportunity to respond”).

       ¶ 7.    Second, and more importantly, “[o]nce one party has filed a notice of appeal, other

parties who have not joined in that initial notice of appeal must file their own notices of appeal if

they wish to attack all or a portion of the judgment below and to be relieved of the consequences

thereof.” 16A Wright et al., supra, § 3950.7, at 499. The governing principle is that “any named

party, without filing a separate or cross-appeal, may make or renew in the appellate court any

available argument designed to preserve or justify that portion of the judgment favorable to that

party,” but a separate appeal or cross-appeal “is required if a party wishes to attack the judgment

to enlarge the party’s rights under the judgment or to lessen the rights of the party’s opponent.”

Id.; see also Jennings v. Stephens, 135 S. Ct. 793, 798 (2015) (“[A]n appellee who does not cross-

appeal may not attack the decree with a view either to enlarging his own rights thereunder or of

lessening the rights of his adversary.” (quotation omitted)); Huddleston v. Univ. of Vt., 168 Vt.

249, 255, 719 A.2d 415, 419 (1998) (“An appellee seeking to challenge aspects of a trial court’s

decision must file a timely cross-appeal, unless, of course, the party was content with the final

order below, leaving it nothing to appeal” (citation omitted)).

       ¶ 8.    We recognize that our current appellate rules do not explicitly address situations

such as this. See V.R.A.P. 3(c) (providing that parties may file joint appeal and proceed as single

appellant or may file separate notices of appeal, which may be consolidated); V.R.A.P. 4(a)(6)

(providing that once one party files timely notice of appeal, “any other party may file a notice of

appeal within 14 days after the date when the first notice was filed, or within the time otherwise

prescribed by this rule, whichever period ends later”); see also 16A Wright et al., supra, § 3950.7,

at 507 (“The 14-day provision [in F.R.A.P. 4] is not limited to cross-appeals, and plainly

encompasses appeals by other parties such as co-parties or third-party defendants.”). Accordingly,

the matter will be referred to the Civil Rules Committee to consider whether to propose any

                                                 4
amendments to the appellate rules. See, e.g., In re M.K.M.R., 199 P.3d 1038, 1040-41 (Wash. Ct.

App. 2009) (applying appellate rule providing that court will grant relief to one of multiple parties

on one side of case only if party has filed notice of appeal or been joined in appeal or “if demanded

by necessities of the case”); see also 16A Wright et al., supra, § 3949.2, at 85 (“A number of courts

set a requirement (or presumptive requirement) that parties on the same side of consolidated

appeals file a joint brief.”).

        ¶ 9.    Before addressing the appealing parties’ arguments, we set forth the relevant law.

The enabling statute at issue in this case is 24 V.S.A. § 4423, entitled “Transfer of development

rights.” Section 4423(a)3 provides as follows:

                 In order to accomplish the purposes of 10 V.S.A. § 63014,
                [municipal] bylaws may contain provisions for the transfer of
                development rights. The bylaws shall do all the following:

                  (1) Specify one or more sending areas for which development
                rights may be acquired.

                 (2) Specify one or more receiving areas in which those
                development rights may be used.

                 (3) Define the amount of density increase allowable in receiving
                areas, and the quantity of development rights necessary to obtain
                those increases.

                 (4) Define “density increase” in terms of an allowable percentage
                decrease in lot size or increase in building bulk, lot coverage, or ratio
                of floor area to lot size, or any combination.

                 (5) Define “development rights,” which at minimum shall include
                a conservation easement, created by deed for a specified period of
                not less than 30 years, granted to the municipality under 10 V.S.A.

        3
           In 1986, the Legislature first enacted into law, as 24 V.S.A. § 4407(16), language
essentially identical to that currently included in § 4423(a). See 1985, No. 243 (Adj. Sess.), § 6.
        4
          Section 6301 provides that the purpose of chapter 155 in Title 10, entitled “Acquisition
of Interests in Land by Public Agencies,” is to maintain uses of undeveloped land, prevent
accelerated residential and commercial development of such land, preserve Vermont’s scenic
natural resources, enable orderly growth in the face of increasing development, and strengthen
Vermont’s economy and its recreation industry by encouraging the use of conservation and
preservation tools to support farm and forest enterprises. 10 V.S.A. § 6301.

                                                   5
               chapter 155, limiting land uses in the sending area solely to specified
               purposes, but including, at a minimum, agriculture and forestry.

       ¶ 10.   The key provisions of the TDR bylaw became effective in the early 2000s and were

last updated prior to this case in 2016. Although the maximum assigned density in the Southeast

Quadrant residential subdistricts is generally 1.2 dwelling units or lots per acre, up to four dwelling

units per acre and four dwelling units per structure are permitted within a contiguous development

parcel subject to a single PUD in the SEQ-NR district. See South Burlington Land Development

Regulations, Southeast Quadrant, § 9.05(A), (B)(3) (adopted May 12, 2003; amended effective

June 27, 2016). Under § 9.13(C),5 entitled “Transfer of Development Rights and Non-Contiguous

PUDs,” the DRB may approve a PUD application involving noncontiguous parcels and the transfer

“of all or a portion of the residential development density calculated for a non-contiguous

encumbered parcel to another parcel” in satisfaction of § 9.05 subject to the following conditions:

the applicant demonstrates “that development rights have been secured and encumbered from

lands lying within the SEQ-NRP or SEQ-NRT sub-districts” and either “the sending parcel is

sufficiently encumbered against further land subdivision and development through a purchase or

other agreement acceptable to the City Attorney to ensure conformance with these regulations” or

an encumbered parcel that is “not subject to a permanent conservation easement or restriction of

similar binding effect shall be reviewed as [a] component[] of the PUD” and subject to the

applicable regulations. Id. § 9.13(C)(1)-(2).




       5
          In November 2019, the City enacted interim bylaws that, among other things, temporarily
disallowed subdivisions and PUDs in all but the Transit Overlay District and certain business parks
until the City undertook an analysis of undeveloped open spaces, completed an extensive study of
PUDs and master plans, undertook an analysis of the program for TDRs established in the land
development regulations, and conducted a cost-benefit analysis of hypothetical development.
Accordingly, the October 28, 2019 amendments to the land use regulations removed § 9.13C.
None of these actions have any impact on this case, which is governed by the land development
regulations as amended in 2016.

                                                  6
       ¶ 11.   The issues before us in this appeal are whether the City’s 2016 TDR bylaw is

invalid because it fails to comply with the requirements set forth in § 4423(a) and whether it is

void for vagueness.6 The Environmental Division ruled that the bylaw is invalid because it does

not comply with subsections (3) and (5) of § 4423(a) and is unconstitutionally vague. Regarding

compliance with § 4423(a), we consider each of § 4423(a)’s five subsections, insofar as neighbors

contend that the City’s TDR bylaw does not comply with any of those subsections.

       ¶ 12.   Before considering § 4423(a), however, we address applicant’s contention that the

controlling statute in determining the TDR bylaw’s compliance with state law is primarily § 4410

of Title 24 rather than § 4423(a). Section 4410, which was added in 2004, see 2003, No. 115 (Adj.

Sess.), § 95, provides that a municipality: (1) “may define and regulate land development in any

manner that the municipality establishes in its bylaws, provided those bylaws are in conformance

with the [town] plan and are adopted for the purposes set forth in section 43027 of this title”; and

(2) “may utilize any or all the tools provided in this subchapter and any other regulatory tools or

methods not specifically listed,” except that “no bylaws shall directly conflict with sections 4412

and 4413 of this title and subchapters 9, 10, and 11 of this title.”8 24 V.S.A. § 4410.


       6
         For consistency’s sake, we will use the present tense when referring to the land
development regulations that comprise the TDR bylaw in this case, even though, as noted, the key
TDR provision, § 9.13(C), was removed pursuant to a 2019 amendment to the City’s land
development regulations.
       7
          Section 4302(a) of Title 24 cites multiple general purposes underlying the statutory
provisions concerning municipal and regional planning and development, including facilitating the
growth of villages, towns and cities while protecting residential and agricultural areas from
overcrowding. Section 4302(b) lists a wide range of goals connected to municipal planning and
development.
       8
          Section 4412 lists land development provisions that shall apply in every municipality.
Section 4413 limits the types of municipal zoning restrictions that may apply to specified uses
such as state facilities, schools, hospitals, and other entities. Subchapters 9, 10, and 11 of the
chapter on municipal and regional planning and development concern, respectively, adoption,
administration, and enforcement of bylaws; appropriate municipal panels and procedures for
development review; and appeals. See 24 V.S.A. §§ 4440-4476.

                                                 7
       ¶ 13.   Applicant argues that § 4410, which the Legislature enacted to address regulatory

impediments to land development and to give municipalities more flexibility in the management

of land development and conservation, provided the City the authority to enact the TDR bylaw at

issue in this case. According to applicant, the Environmental Division incorrectly concluded that

there is a conflict between § 4410 and § 4423(a). In applicant’s view, there is no conflict between

the two statutes, and even if there were, § 4410 was enacted far more recently than the language

contained in § 4423(a), which, as noted, dates back to 1986. Appellant asserts that the City’s TDR

bylaw is effective under § 4410 even if the bylaw fails to comply with some or all of the specific

requirements set forth in § 4423(a).

       ¶ 14.   This argument is based on a false premise and overstates the authority that § 4410

affords municipalities with respect to using TDRs. As an initial matter, the Environmental

Division did not determine that there was a conflict between the two statutes; rather, the court

stated only that, given the specific requirements set forth in § 4423(a), it was unconvinced that the

broad grant of authority in § 4410 negated or superseded the clear directives set forth in § 4423(a).

We agree with that assessment. To be sure, in enacting § 4410, the Legislature intended to confer

upon municipalities flexibility in applying a broad array of regulatory tools and methods with

respect to regulating local land development. But the Legislature explicitly addressed one of those

tools—the use of TDRs—in § 4423(a) and set forth specific still-viable requirements in that

provision. Longstanding rules of statutory construction counsel “that a specific statute [dealing

with the same subject matter] governs over a more general one,” Parkway Cleaners, 2019 VT 21,

¶ 40, and that “[w]hen two statutes deal with the same subject matter and one is general and the

other special, they must be read together and harmonized if possible to give effect to a consistent

legislative policy,” Blundon v. Town of Stamford, 154 Vt. 227, 229-30, 576 A.2d 437, 439 (1990)

(quotation omitted). Keeping in mind our overriding goal of discerning legislative intent, see In

re Eustance Act 250 Jurisdictional Op., 2009 VT 16, ¶ 35, 185 Vt. 447, 970 A.2d 1285, we

                                                 8
conclude that § 4423(a)’s more specific authorization with limitations set forth therein constrains

the City, but that in determining how strictly to construe that statutory provision, we take into

account the Legislature’s general guidance in § 4410 that municipalities should have broad

flexibility in regulating local land development.

       ¶ 15.   We now consider whether the TDR bylaw at issue in this appeal complies with the

five subsections of § 4423(a). “While municipalities are entitled to create their own regulatory

ordinances, those ordinances must conform to statutory standards.” N. Country Sportsman’s Club

v. Town of Williston, 2017 VT 46, ¶ 12, 205 Vt. 1, 170 A.3d 639. Nonetheless, “[t]his Court

reviews zoning ordinances narrowly, overturning only those that are clearly unreasonable,

irrational, arbitrary, or discriminatory.” In re White, 155 Vt. 612, 617, 587 A.2d 928, 931 (1990);

see also Town of Brattleboro v. Nowicki, 119 Vt. 18, 19, 117 A.2d 258, 259 (1955) (“When an

ordinance is passed relating to a subject matter within the legislative power of the municipality,

every reasonable presumption is made in favor of its validity.”). “If an ordinance does not properly

comply with or effectuate a statute, that ordinance should be read to include and effectuate the

statute.” N. Country Sportsman’s Club, 2017 VT 46, ¶ 12 (quotation omitted); see also In re

LaBerge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578, 15 A.3d 590 (mem.) (“We adopt a

construction that implements the ordinance’s legislative purpose and, in any event, will apply

common sense.”). As with statutes, “[w]hen interpreting zoning ordinances, we construe words

according to their plain and ordinary meaning, giving effect to the whole and every part of the

ordinance.” In re Trahan NOV, 2008 VT 90, ¶ 19, 184 Vt. 262, 958 A.2d 665; see also Brisson

Stone, LLC v. Town of Monkton, 2016 VT 15, ¶ 21, 201 Vt. 286, 143 A.3d 550 (“We construe

zoning regulations to give effect to the whole without being limited to a single sentence.”).

       ¶ 16.   Neighbors’ arguments that the TDR bylaw fails to comply with subsections (1), (2),

and (5) of § 4423(a) are interrelated. Subsections (1) and (2) of § 4423(a) require a municipal

TDR bylaw to specify, respectively, “sending areas” in which, and “receiving areas” for which,

                                                    9
“development rights” may be acquired and used. 24 V.S.A. § 4423(a)(1)-(2). Section (5) of

§ 4423(a) requires a TDR to define “development rights” and states that such rights must include

at minimum a conservation easement for a period of not less than thirty years. Id. § 4423(a)(5).

Neighbors argue that the TDR bylaw does not comply with any of these three sections because it

does not define the terms “sending areas,” “receiving areas,” or “development rights.” Neighbors

acknowledge that § 9.04(C) designates “development areas” and “conservation” areas, but they

assert, with little explanation, that those terms are not equivalent to the statutory terms “sending

areas” and “receiving areas.” Neighbors simply point to an alleged incongruity in the fact that

§ 9.13(C)(1)(a) allows an applicant to demonstrate that development rights have been secured from

subdistricts SEQ-NRP or SEQ-NRT, even though § 9.04(C) designates SEQ-NRT as a

development area.

       ¶ 17.   The Environmental Division rejected the rigid construction favored by neighbors

with respect to sections (1) and (2) of § 4423(a). In the court’s view, § 4423(a)(1) and (2) require

only that at a municipal TDR bylaw designate areas in which development rights may be acquired

and used, which § 9.04 does by specifying conservation and development areas. We agree.

Section 9.04(C) generally designates subdistricts as development areas or conservation areas.

Section 9.13(C)(a)(1), the bylaw that specifically addresses TDRs and noncontiguous PUDs,

provides that development rights must be secured from a “sending parcel” in subdistricts SEQ-

NRP or SEQ-NRT. Section 9.13(C)(2) permits the DRB to approve a transfer of residential

development density to another parcel (in the Southeast Quadrant District) pursuant to § 9.05,

which allows increased density, under subsection B., in all subdistricts other than SEQ-NRP. The

fact that development rights may be secured from subdistrict SEQ-NRT pursuant to § 9.13C even

though that subdistrict is generally designated a conservation area in § 9.04(C) does not

demonstrate that the TDR bylaw fails to comply with the requirements of § 4423(a). Section 9.13C

is the controlling provision with respect to designating TDR sending areas for PUD applications.

                                                10
In any event, although § 4423(a) requires TDR bylaws to specify sending and receiving areas,

nothing in the enabling law prohibits municipalities from designating certain subdistricts as both

sending and receiving areas. Nor do we find any basis to imply such a prohibition. In light of our

narrow review of municipal zoning ordinances stated above, we reject neighbors’ objections to the

City’s TDR bylaw based on the first two subsections of § 4423(a).

         ¶ 18.   The Environmental Division ruled, however, that the TDR bylaw does not comply

with § 4423(a)(5), which requires municipal TDR bylaws to define development rights and

specifies the minimum development rights that must be secured. The court agreed with neighbors

that the City’s TDR bylaw does not comply with § 4423(a)(5) because it neither formally defines

the term “development rights” nor references the minimum encumbered development rights set

forth in that subsection of the statute. While recognizing the bylaw’s condition that the city

attorney find acceptable any agreement encumbering development rights on the sending parcel,

the court noted that the bylaw does not specify the type of encumbrances that would satisfy the

bylaw.

         ¶ 19.   We find the Environmental Division’s analysis overly confining. Subsection 2.02

of the City’s land development regulations defines the word “development” in detail.9 Subsection

2.01(F) of the regulations states that undefined words or phrases shall have their “plain and

commonly accepted meaning.” In relevant part, Black’s Law Dictionary defines a right as “an

interest, claim, or ownership that one has in tangible or intangible property.” Right, Black’s Law

Dictionary (11th ed. 2019). The concept of development rights is not an obscure one. The City’s

regulations are sufficient to satisfy the requirement that development rights be defined. As for the



         Subsection 2.02 of the regulation defines development as: “(A) The carrying out of any
         9

change to improved or unimproved land, including but not limited to the construction,
reconstruction, conversion, structural altercation, relocation, enlargement or use of any structure
or parking area; (B) any mining, excavation, dredging, filling, grading, drilling or any land
disturbance; (C) any use or extension of the use of the land; or (D) the subdividing of land into
two or more parcels.”
                                                 11
minimum development rights required by § 4423(a)(5), our case law supports reading in the

required language by inference rather than invalidating the bylaw. Cf. In re Walker, 156 Vt. 639,

639, 588 A.2d 1058, 1059 (1991) (mem.) (“A municipal ordinance must be read to include the

statutory requirements of 24 V.S.A. § 4407(2), and those requirements will govern whether or not

they are expressly set forth in the ordinance.”). Accordingly, we conclude that the provisions of

§ 4423(a)(5) apply to the TDR in this case, even though the TDR does not expressly so provide.

Indeed, neighbors do not challenge the adequacy of the specific development rights to be

transferred or the manner in which those development rights have been secured.

       ¶ 20.   We now turn to § 4423(a)(3), which requires that a municipal TDR bylaw “[d]efine

the amount of the density increase allowable in receiving areas, and the quantity of development

rights necessary to obtain those increases.” 24 V.S.A. § 4423(a)(3). The Environmental Division

concluded that § 9.05(B), made applicable in § 9.13(C)(2), satisfies the first requirement of

§ 4423(a)(3)—that the bylaw define the amount of density increase allowable in receiving areas—

by establishing a base density and a maximum density with respect to PUD applications involving

TDRs. The court concluded, however, that the bylaw does not satisfy the second requirement of

§ 4423(a)(3) because no language in the City’s regulations indicates the quantity of development

rights necessary to obtain density increases in the receiving areas.

       ¶ 21.   We conclude that the City’s TDR bylaw complies with both requirements set forth

in § 4423(a)(3). We agree with the Environmental Division that the regulations plainly state the

amount of density increase by establishing a baseline maximum density and an allowable density

in different Southeast Quadrant subdistricts for TDRs pursuant to a PUD application. As for

defining the quantity of development rights necessary to increase density in the receiving area, the

permitted quantity of increase is the difference between the base density and the allowable

maximum density. In short, there is a one-to-one relationship between the development rights

acquired and used—the amount of density increase allowable in the receiving areas and the

                                                 12
quantity of development rights necessary to obtain those increases. This is consistent with the

DRB’s calculations in determining the required quantity of development rights with respect to past

proposed PUD applications under the TDR bylaw at issue here. See, e.g., Snyder S. Pointe Ltd.

P’ship—111 Unswept Lane, Preliminary and Final Plat Application, #SD-14-14, at 2-3 (June 18,

2014); Dorset Street Assocs.—Cider Mill II Final Plat Application, #SD-08-34, at 2 (Oct. 17,

2007).

         ¶ 22.   Finally, we consider § 4423(a)(4), which requires a municipal TDR bylaw to

“[d]efine ‘density increase’ in terms of an allowable percentage decrease in lot size or increase in

building bulk, lot coverage, or ratio of floor area to lot size, or any combination.” 24 V.S.A.

§ 4423(a)(4). The Environmental Division concluded that the City’s bylaw satisfies § 4423(a)(4)

through a combination of: (1) § 9.05(B), which establishes a base density and maximum density

in terms of dwelling units per acre for lots within Southeast Quadrant subdistricts; and

(2) dimensional standards applicable to all districts, which not only establish minimum lot sizes in

terms of maximum dwelling units per acre, but also set forth components of building bulk in terms

of maximum building heights and the percentage of the site that can be covered by buildings.

Neighbors argue that the TDR bylaw’s “coarse attempt” to increase density in receiving areas by

increasing dwelling units per acre fails to comply with the specific requirements of § 4423(a)(4).

They contend that increasing dwelling units per acre does not necessarily provide for a percentage

increase in either building bulk or lot coverage.

         ¶ 23.   We find neighbors’ analysis unduly constraining. Subsection (a)(4) allows density

increase to be defined in “any combination” of either a decrease in lot size or an increase in

building bulk, lot coverage, or ratio of floor size to lot size. To be sure, the City’s TDR bylaw

does not define density increase in any of those specific individual terms. But given the restrictions

on minimum lot size, maximum site coverage, standard setbacks, and maximum building height

set forth in the regulations’ “Uses and Dimensional Standards,” allowing density increase through

                                                    13
an increase in dwelling units per acre will, as a practical matter—notwithstanding neighbors’

mathematical worse-case-scenario calculations to the contrary—increase density with respect to

one or more of those individual terms. Indeed, in the context of a PUD, density of dwelling units

is a more robust method for increasing density in the receiving area in exchange for a decreased

density in the sending area—the primary purpose of the statute—than any of the individual

statutory terms considered separately. We concur with the Environmental Division that the City’s

TDR bylaw satisfies § 4423(a)(4).

       ¶ 24.   Regarding the constitutional challenge, the Environmental Division determined

that the City’s TDR bylaw was unconstitutionally vague for the same reason it did not comply

with the second requirement of § 4423(a)(3)—it neither explicitly states the quantity of

development rights that need to be acquired from sending areas to be used in receiving areas nor

provides any guidance for the city attorney to determine whether to approve the assignment of all

or a portion of the sending area’s development rights. We conclude that the TDR bylaw is not

unconstitutionally vague.

       ¶ 25.   “Laws and regulations are unconstitutionally vague when they either fail to provide

sufficient notice for ordinary people to understand what conduct is prohibited, or allow arbitrary

and discriminatory enforcement.” In re Beliveau, 2013 VT 41, ¶ 15, 194 Vt. 1, 72 A.3d 918. “The

test for vagueness is less strict when applied to regulations that affect economic interests, not

constitutional rights, and when the aggrieved party can seek clarification of its meaning or resort

to administrative processes.” Id. (quotation omitted). We will invalidate ordinances that lead to

unbridled discrimination, but “we will uphold standards even if they are general and will look to

the entire ordinance, not just the challenged subsection, to determine the standard to be applied.”

In re Pierce Subdivision Application, 2008 VT 100, ¶ 20, 184 Vt. 365, 965 A.2d 468; see also In

re Handy, 171 Vt. 336, 348, 764 A.2d 1226, 1238 (2000) (recognizing that statutory standard



                                                14
sufficient to overcome constitutional void-for-vagueness challenge “can be general, and can be

derived from historical usage”).

        ¶ 26.   Neighbors argue that the TDR bylaw does not provide any standards for the DRB

to apply in determining whether to approve all or some of a developer’s TDR request. See City of

South Burlington Land Development Regulations, § 9.13(C)(2) (“If the conditions of 9.13(C)(1)

above are met, the Development Review Board may then approve the assignment (transfer) of all

or a portion of the residential development density calculated for a non-contiguous encumbered

parcel to another parcel to satisfy the provisions of Section 9.05 above.” (emphasis added)).

According to neighbors, the bylaw, like the ordinance provision this Court struck down in In re

Appeal of JAM Golf, LLC, “fails to provide adequate guidance, thus leading to unbridled

discrimination by the court and planning board charged with its interpretation.” 2008 VT 110,

¶ 13, 185 Vt. 201, 969 A.2d 47. Neighbors further argue that the TDR bylaw fails to provide

adequate guidance for the city attorney to apply in determining whether the sending parcel is

sufficiently encumbered “to ensure conformance with these Regulations.”                 City of South

Burlington Land Development Regulations, § 9.13(C)(1)(a).10

        ¶ 27.   Our rejection of neighbors’ statutory arguments effectively negates their facial

void-for-vagueness challenge of a detailed TDR bylaw that imposes specific conditions on TDRs

pursuant to PUD applications. The proper inquiry in these circumstances is whether the TDR

bylaw provides the DRB or a court “with sufficient overall standards” to approve a PUD—“a type

of concentrated . . . development permitted in exchange for open space.” Pierce Subdivision, 2008


        10
           In a single sentence at the end of their brief, neighbors argue, in the alternative, that even
if the TDR bylaw is not unconstitutional on its face, it is unconstitutional as applied in this case.
Absent extraordinary circumstances that do not exist here, this Court will not consider even
constitutional arguments that are inadequately briefed. See Pease v. Windsor Dev. Review Bd.,
2011 VT 103, ¶ 29 n.4., 190 Vt. 639, 35 A.3d 1019 (mem.) (declining to address constitutional
issue that was insufficiently raised and inadequately briefed). Accordingly, we do address
neighbors’ argument that the TDR bylaw condition assigning discretion to the city attorney is
unconstitutionally vague as applied.
                                                   15
VT 100, ¶ 21. The bylaw in this case plainly meets that standard, establishing multiple conditions

for the city attorney and the DRB to consider with respect to PUD applications involving TDRs.

Moreover, to succeed on a facial challenge, neighbors would have to demonstrate that the bylaw

“ ‘is impermissibly vague in all its applications.’ ” CMR D.N. Corp. v. City of Philadelphia, 703

F.3d 612, 631 (3d Cir. 2013) (quoting Vill. of Hoffman Esates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 497 (1982)); see also In re LaBerge NOV, 2016 VT 99, ¶ 25, 203 Vt. 98, 152 A.3d

1165 (rejecting facial void-for-vagueness challenge, even though “there may be marginal cases in

which it is difficult to determine the side of the line on which a particular fact situation falls”).

Neighbors have failed to do so here.

       ¶ 28.   We find unavailing neighbors’ reliance on JAM Golf, a case in which this Court

struck down, essentially on due process grounds, a municipal ordinance provision that required

planned-residential-development designs to protect important natural resources, but that failed to

provide any guidance to landowners as to what was expected of them in this regard. 2008 VT 110,

¶¶ 12-14. In contrast, the TDR bylaw at issue here provides “sufficient conditions and safeguards

to guide applicants and decisionmakers.” Id. ¶ 13 (quotation omitted).

        The Environmental Division’s decision finding the City of South Burlington’s then-
governing TDR bylaw invalid and unconstitutionally vague is reversed, and the matter is remanded
for the court to enter summary judgment in favor of applicant.


                                                FOR THE COURT:



                                                Chief Justice




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