                                  STATE OF VERMONT
                                ENVIRONMENTAL COURT

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Stowe Highlands PRD                              }          Docket No. 184-8-06 Vtec
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                                 Decision on Pending Motions
       Appellant 232511 Investments, Ltd. d/b/a/ Stowe Highlands (Stowe Highlands) appealed
from a decision of the Town of Stowe (Town) Development Review Board (DRB) dated July 22,
2006, denying Stowe Highland’s application to convert its 236± acre Resort PUD to a PRD,
merge three parcels (so-called Parcel 1 and Lots 21 and 22), and then subdivide the resulting 22
acres into 13 residential lots plus a 9.3-acre open space lot. The DRB denied the application by
answering in the negative the following threshold question: whether Stowe Highlands can act
unilaterally in seeking to change the development from a Resort PUD to a PRD, thus concluding
that Stowe Highlands, by itself, was not the proper applicant for the requested changes.
       Stowe Highlands filed five Questions in its Statement of Questions, and the Town moves
to limit the scope of the appeal to Questions 1–3. Interested Persons Leighton C. Detora, Esq.,
Dominique Root, and Valar and Lisa Mihan filed separate motions to dismiss Questions 4 and 5.
This appeal is “on-the-record” because the Town has adopted and implemented the procedures
necessary for such appeals, pursuant to 24 V.S.A. § 4471(b).
       Stowe Highlands is represented by Harold B. Stevens, Esq., the Town is represented by
Amanda Lafferty, Esq., Interested Person Dominique Root is represented by George C. Stearns,
Esq., Interested Persons Valar and Lisa Mihan are represented by Russell Barr, Esq., Interested
Persons Christopher and Mary Lintermann are represented by Carl H. Lisman, Esq., and
Interested Person Leighton C. Detora, Esq., represents himself.


                          Stowe Highlands’s Statement of Questions
       The present motions relate solely to the appropriateness of the Questions submitted by
Stowe Highlands for determination by this Court. Stowe Highlands’s five Questions are copied
here for reference.
       1.     Did the Tenth Supplement to the Declaration of Stowe Highlands give Stowe
    Highlands authorization in writing to apply for the permit change from a Resort Planned
    Unit Development (“PUD”) to a Planned Residential Development (“PRD”) on behalf of
    all the Stowe Highlands lot owners?
       2.      Did the DRB err in concluding that Stowe Highlands was not the proper
    applicant to change the Resort PUD to a PRD?
       3.      Does . . . Stowe Highlands have control of the Stowe Club Property as
    Declarant [and] has [it] reserved the right to grant itself permits, easements and licenses
    over the entire Stowe Club Property?
       4.    Does the plan submitted by Stowe Highlands comply with all the standards of
    a PRD contained in Stowe’s zoning by-laws?
       5.      Should Stowe Highlands have been granted the permit for which it applied for
    13 Village Houses on Parcel 1 and Lots 21-22?

                                           Discussion
       The Town’s motion seeks to limit the scope of the appeal to Questions 1–3; Interested
Persons Detora, Root, and Mihan’s motions to dismiss Questions 4 and 5 share the same basis:
that the DRB denied Stowe Highland’s application on the threshold question of whether Stowe
Highlands, by itself, was the proper applicant. Thus the DRB never reached the substantive issue
of whether the plan submitted by Stowe Highlands complies with the Town’s standards
regarding PRDs. Since the DRB never addressed the substance of Stowe Highland’s application
in the first instance, movants argue that Questions 4 and 5, which relate to those substantive
issues, are beyond the scope of the appealed-from decision and thus improper for this Court to
consider. We agree and therefore grant the pending motions.
       In a de novo appeal, this Court stands in the place of the decision maker below, and looks
anew at the application as if no decision had been rendered below. V.R.E.C.P. 5(g). By
contrast, in an on-the-record appeal such as this one, the Court is tasked with determining
whether the decision below is supported by substantial evidence in the record. 24 V.S.A.
§ 4471(b). In an on-the-record appeal, the Court may not stray beyond the boundaries of the
appealed-from decision to consider issues not decided below. See In re Dunnett, 172 Vt. 196
(2001) (summarizing the requirements a municipality must fulfill to have appeals from its DRB
determinations be “on-the-record” and comparing the difference of such proceedings and de
novo appeals.). The limited nature of on-the-record review does not allow us to render our own
factual determinations. We decline to do so here.
       In this case, the DRB made the legal determination that “the application was not properly
before the Board, in that [Stowe Highlands], by itself, is not the proper applicant for the


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requested changes.”     DRB Decision dated July 22, 2006, at 3.        Stowe Highlands is here
appealing the DRB’s decision on that preliminary legal question. Stowe Highlands is not here
appealing a decision as to the merits of its application, as no decision on the merits of the
application was reached below. It would therefore be improper for this Court to take up such an
issue, since the municipal panel below did not first address it.
         Stowe Highlands’s Questions 4 and 5 relate to the merits of its application. The issues
raised by the merits of Stowe Highland’s application are beyond the parameters of the appealed-
from decision. We must therefore grant the motions to dismiss Questions 4 and 5 filed by
Interested Persons Detora, Root, and Mihan. For the same reasons, we conclude that Stowe
Highlands’s Questions 4 and 5 are by their nature beyond the scope of the appealed-from
decision, and therefore grant the Town’s motion to limit the scope of the appeal to Questions 1, 2
and 3.


         Accordingly, based on the forgoing, we GRANT the Motions to Dismiss filed by
Interested Persons Detora, Root, and Mihan, as well as the Town’s Motion to Limit the Scope of
the Appeal. This matter shall be set for a follow-up conference, per the enclosed Notice of
Hearing. Since this is an on-the-record appeal, there will be no “trial” or the taking of new
evidence in this matter. At the follow-up telephone conference, the parties should be prepared to
discuss a briefing schedule to address the remaining issues in this appeal and report to the Court
the status of their efforts at mediation. We note that the parties were to report to the Court the
identity of their agreed-upon mediator by October 31st, but the Court has yet to receive this
information from the parties.


         Done at Berlin, Vermont this 2nd day of November, 2006.




                                                      ____________________________________
                                                        Thomas S. Durkin, Environmental Judge




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