2012 VT 87


In re Woodstock Community Trust
and Housing Vermont PRD (2011-398)
 
2012 VT 87
 
[Filed 26-Oct-2012]
 
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@state.vt.us 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.
 
 

2012 VT 87 

 

No. 2011-398

 

In re Woodstock Community Trust
  and 
Housing Vermont PRD 


Supreme Court


(Appeal of Roy, et al., Appellant)


On Appeal from


 
In re Woodstock Community Trust and 
Housing Vermont Act 250 Application


Superior Court,
Environmental Division


(Appeal of Roy et al., Appellant)


 


 


June Term, 2012


 


 


Merideth
  Wright, J.


 

Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland,
for Appellants.
 
C. Daniel Hershenson of Hershenson, Carter, Scott &
McGee, P.C., Norwich, for Appellees.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
DOOLEY, J.   Neighbors of a proposed affordable housing
development appeal an Environmental Division decision affirming a decision of
the Town of Woodstock Development Review Board (DRB) granting
appellee-applicants Woodstock Community Trust and Housing Vermont (hereinafter
collectively referred to as WCT) a zoning permit and a decision of the District
3 Environmental Commission, granting an Act 250 Land Use Permit.  The
Environmental Division had reversed an earlier decision of the DRB granting a
permit,[1]
but upon WCT’s reapplication, and another favorable decision from the DRB, the
Environmental Division affirmed, finding that the deficiencies of the first
application had been corrected.  Following the second DRB decision, WCT
went to the Environmental Commission and obtained an Act 250 permit; the
Environmental Division also affirmed the grant of this permit.  Neighbors
argue that: (1) the successive-application doctrine should have barred the
submission of the second zoning permit application; (2) the second application
failed to correct the problems of the first application; (3) certain of the
Environmental Division’s findings with respect to the Act 250 permit were
clearly erroneous; (4) the court erred by denying a motion to stay this
proceeding; and (5) the Environmental Division erred by conditioning approval
on a water easement’s location being drawn on the plan.  We affirm.
¶ 2.            
WCT presented its proposed development to the Woodstock DRB in June
2007, and the board approved this initial application.  Neighbors of the
project appealed the DRB’s decision to the Environmental Division, which held
that the proposed project failed to meet a number of requirements under the
Town of Woodstock Zoning Regulations.[2] 
The court identified the following problems with the first application: a
parking lot contained several spaces that were planned to be built on what the
court determined to be a protected wet area, the storm water disposal system
was inadequate, the buffer between the development and properties of neighbors
was not sufficient, and there was a lack of ownership and maintenance documents
providing for a legal mechanism to protect open space. The court went on to
note that WCT could make a future application that addressed the deficiencies
in the application.  
¶ 3.            
Several months after this decision, WCT did submit a second application
to the DRB, along with an Act 250 permit application to the District 3
Environmental Commission, both of which were subsequently approved.  The
neighbors appealed both these decisions to the Environmental Division, and the
appeals were consolidated.  During this second appeal, neighbors moved to
stay the proceedings pending the outcome of related property rights litigation
in the Civil Division of the Superior Court regarding neighbors’ water
easements on the development property.[3] 
The Environmental Division denied the motion to stay, and, in a ruling on
cross-motions for summary judgment, concluded that the application was not an
impermissible successive application.  In its decision after trial, the
court went on to conclude that the application sufficiently addressed the
court’s concerns with the first application, and it granted the permits on the
condition that the location of a neighbor’s water easement be drawn on the
existing conditions plan.  This appeal followed.
I
¶ 4.            
Neighbors first argue that the second application should have been barred
by the successive-application doctrine.  The successive-application
doctrine represents an implementation of issue preclusion, as adapted to the
specific context of multiple zoning applications.  In re Armitage,
2006 VT 113, ¶ 4, 181 Vt. 241, 917 A.2d 437.  Issue preclusion serves to
prevent the relitigation of issues that have already been settled in a previous
action.  See State v. Pollander, 167 Vt. 301, 304 n.2, 706 A.2d
1359, 1360 (1997).  The successive-application doctrine reflects the
necessarily iterative zoning and planning process in that it enforces a more
relaxed standard of issue preclusion than is applicable in other
contexts.  
¶ 5.            
The basic description of the doctrine is found in In re Carrier:
“a zoning board . . . ‘may not entertain a second application
concerning the same property after a previous application has been denied
unless a substantial change of conditions had occurred or other considerations
materially affecting the merits’ of the request have intervened between the
first and second application.”  155 Vt. 152, 158, 582 A.2d 110, 113 (1990)
(quoting Silsby v. Allen’s Blueberry Freezer, Inc., 501 A.2d 1290, 1295
(Me. 1985)).  We went on to say in Carrier that a second
application can be granted “when the application has been substantially changed
so as to respond to objections raised in the original application or when the
applicant is willing to comply with conditions the commission or court is
empowered to impose.”  Id.
¶ 6.            
Neighbors contend that more recent decisions add an additional element
to the successive-application doctrine.  See In re McGrew, 2009 VT
44, 186 Vt. 37, 974 A.2d 619; Armitage, 2006 VT 113.  They argue
based on these cases that a second application is not allowed if the applicant
could have, and should have, included the corrective elements in the first
application.  We disagree.  Indeed, the absence of this additional
element is what distinguishes the successive-application doctrine from the more
inclusive standard of issue preclusion.
¶ 7.            
Armitage and McGrew are examples of cases where there was
no change of conditions.  In Armitage, the first application was
denied, in part, because of a traffic deficiency—left turns from the project
onto Route 7 would increase traffic volume on that route.  2006 VT 113, ¶
10.  With respect to that deficiency, the revised application had no
changes to the development proposal but instead the applicant submitted additional
evidence to show that the earlier decision was wrong on this point.  In
denying the second application, we noted that there was no indication that the
additional evidence was unavailable at the time of the first trial.  Id. 
McGrew is similar.  See 2009 VT 44, ¶¶ 12-13.  The point of
these decisions is not that the second application can be denied where
there is a substantial change in the project to meet the first decision any
time that the change could have been made before the first decision.  Instead,
these decisions suggest that even without substantial change in the project
there could be a successive application if it is based on new evidence
unavailable at the time of the first application. 
¶ 8.            
We turn now to the application of the successive-application doctrine in
this case.  The Environmental Division denied the initial application
because the development proposal did not comply with the local zoning ordinance
in four ways.[4] 
First, the proposal failed to properly buffer the development from adjacent
homes as required by Woodstock zoning ordinance § 313(B)(2)(a). 
Second, the proposal failed to satisfy § 313(A)(9)’s requirement for the
preservation of wet areas.  Third, the proposal violated § 313(A)(8)
because it failed to specify how the management and maintenance
responsibilities would be divided among the organizations and what legal
mechanism would be used to protect the land reserved as private open
space.  Finally, the stormwater drainage system did not meet the
requirements of § 313(A)(5), (C)(3)(h), (C)(3)(i), and § 709(B)(5)
because a drainage swale was improperly designed and the developer did not meet
its burden of showing that the system would adequately control stormwater and
account for its discharge into a nearby brook.  Neighbors argue that the
successive-application doctrine should have barred the second application
because it failed to address these problems and was merely a resubmission of
the first application with additional evidence as prohibited by Armitage.
¶ 9.            
The second application had an assortment of changes enumerated in the
project narrative submitted to the DRB.  The DRB was satisfied with the
changes, explicitly rejected the assertion that the second application was
impermissible as a successive application, and approved the new plan with a
vote of 6-0.  Ruling on cross-motions for summary judgment, the
Environmental Division, too, found that the changes were substantial enough to
overcome the bar of the successive-application doctrine and approved the
decision of the review board.  We affirm the decision of the Environmental
Division.
¶ 10.        
The applicant bears the burden of showing changed circumstances. 
See Carrier, 155 Vt. at 158, 582 A.2d at 114.  The second
application contained various changes that were directed at rectifying the
deficiencies identified in the first application by the Environmental
Division.  In order to rectify the open space buffer between the project
and neighboring landowners, the central loop road was tightened, moving the
development away from the neighbors and expanding the buffer zone.  The
central trash and recycling center was also removed as part of the effort to
create an adequate buffer.  Additionally, the revised application
eliminated seven parking spaces to prevent the disturbance of what the
Environmental Division determined to be a protected wet area.  It also
included a draft community declaration which outlined the planned ownership and
management structure of the development.  
¶ 11.        
Neighbors particularly focus on the stormwater disposal system, arguing
that with respect to this aspect of the plan, WCT submitted only new evidence
for an unchanged proposal.  WCT changed the stormwater drainage system in
the first application just before trial, and many of the elements of the system
were incomplete.  The Environmental Division rejected the system in the
first application for two reasons.  First, with respect to stormwater from
the surrounding undeveloped hillsides, the project plan proposed to divert this
stormwater around the developed area with the use of a steep and wide drainage
swale that would require the cutting down of many trees.  The court
rejected this swale design.  With respect to the runoff from the developed
area, the application was sketchy and incomplete.  The court ruled that
“[i]t is not enough at this final approval stage to explain that the drainage
proposal has only recently been redesigned and that any problems can be adjusted
during construction.”  In the second application, WCT redesigned the swale
to respond to the objections of the court.  It also provided a complete
and detailed description of all of the elements of the system, along with
permits from the Agency of Natural Resources for the redesigned system.
¶ 12.        
We agree with both the review board and the Environmental Division that
these changes were adequate to constitute a substantial change of
conditions.  They are in line with what we and other courts have often
recognized as sufficient to overcome the principle of the
successive-application doctrine.  See Carrier, 155 Vt. at 159, 582
A.2d at 114 (holding that redesigned interior road network, reconfigured lots,
and updated landscaping were substantial changes); Malmstrom v. Zoning Bd.
of Appeals, 207 A.2d 375, 377-78 (Conn. 1965) (holding that change of
location for building and parking area, along with parking area’s reduced size
were change of conditions); Russell v. Bd. of Adjustment, 155 A.2d 83,
88 (N.J. 1959) (holding that five-foot increase in front setback and decrease
in lot coverage from eighteen to twelve percent constituted sufficient change);
Peterson v. City Council, 574 P.2d 326, 331 (Or. Ct. App. 1978) (holding
that smaller building and modified setbacks were change of conditions).
¶ 13.        
In their brief, neighbors put a great deal of emphasis on the statements
of the project architect who characterized the changes to the project as
“subtle.”  Neighbors argue that WCT is bound by this admission, and the
court could not find the changes substantial in light of the admission. 
In fact, the architect’s statement, even if it somehow binds WCT, is not
inconsistent with WCT’s position.  Under the successive-application
doctrine, the applicant can change the project to respond to the deficiencies
that caused the denial of the permit application however small the changes are
in the context of the overall project.  Here, the question is not the
overall impact of the changes on the project, but instead whether they
substantially change individual elements to respond to the deficiencies.
¶ 14.        
The architect’s statements may have some probative value in the
evaluation of the changes, but they are far from determinative.  They do
not preclude WCT’s argument and should be given the same weight as any other
piece of evidence.  
¶ 15.        
We do acknowledge that part of WCT’s presentation on the stormwater
system involves a context for the successive-application doctrine that we have
not clearly addressed in the past.  The redesign of the drainage swale was
a substantial change in the stormwater system that responded specifically to a
deficiency the court found in the first application.  The presentation of
the rest of the system, however, specifically the drainage for the run-off of
the developed part of the project land, is a full and complete description of
what WCT proposed in the first application, now supported by ANR permits.
 The distinction between this situation and those present in Armitage
and McGrew is that here the first application was denied because it was
incomplete, whereas the applications in those cases were complete, and denied
on the merits.  We conclude that in keeping with the flexibility of
successive-application doctrine a second complete application is not precluded
by the denial of a prior incomplete application.  We recognize in drawing
this line that it is somewhat fine and must be carefully applied not to allow a
second application because it is better prepared than the former application.
II
¶ 16.        
We next address the question of whether the changes in the second
application corrected the deficiencies of the first application.  We
review the Environmental Division’s “interpretation of zoning ordinances and
findings of fact for clear error.”  Armitage, 2006 VT 113, ¶
3.  We uphold legal conclusions by the Environmental Division that are
reasonably supported by the findings.  See In re Eastview at
Middlebury, Inc., 2009 VT 98, ¶ 10, 187 Vt. 208, 992 A.2d 1014.
 Neighbors claim that the court’s conclusions were clearly
erroneous with regard to required parking, the ownership and maintenance
documents, and the stormwater disposal system.
¶ 17.        
In the second application, WCT eliminated seven parking spaces that
encroached on what the court determined to be a wet area in its first
decision.  In order to make up for the lost spaces, applicants created a
number of tandem driveways, only wide enough for a single car, but long enough
for two cars to park one behind the other.  The nature of the tandem
driveway requires the back car to move before the front car may exit, but the
two spaces in a driveway are both assigned to a single unit.  Neighbors
claim that the Environmental Division determination that the application satisfied
§ 520 of the town zoning regulations was clearly erroneous because the tandem
driveways could not be counted as two parking spaces.
¶ 18.        
Neighbors argue that because the driveways are intended to contain two
cars, they should properly be characterized as parking lots, which are required
by § 520(A)(2) to have at least 250 square feet per car so that the spaces are
accessible.  Section 520(A)(1) defines a parking space as 9' x 18'. 
The tandem driveways are designed to be 10' x 36'-40', the size of two parking
spaces.  This driveway is not large enough to fit the definition of
parking lot, but it is not required to.  Nothing in the Woodstock zoning
ordinance requires a driveway to satisfy the definition of parking lot or
otherwise limits it from being counted as several parking spaces for the
purposes of site plan review.  Because it is not clearly erroneous, we
defer to the Environmental Division’s interpretation of the ordinance.  In
re Appeal of Wesco, Inc., 2006 VT 52, ¶ 7, 180 Vt. 520, 904 A.2d 1145
(mem.) (“We defer to the Environmental Court's interpretation of a zoning
ordinance ‘unless it is clearly erroneous, arbitrary, or capricious.’ ”)
(quoting In re Cowan, 2005 VT 126, ¶ 7, 179 Vt. 560, 892 A.2d 207
(mem.)).  There is no reason a tandem driveway must be considered a
parking lot, rather than two parking spaces arranged in a column.  Nor can
we conclude that the ordinance prohibits this method of configuring parking so
as to meet the number-of-spaces requirement. 
¶ 19.        
Next, neighbors argue that the ownership and maintenance documents do
not comply with § 313(A)(8) of the town regulations or Title 27A of the Vermont
Statutes.  Section 313(A)(8) provides in full:
 
The project land may be owned, leased or controlled either by a single person
or corporation or by a group of individuals or corporations.  The approved
project plan shall be binding on the project land and on present and successive
owners.  To assure adequate property management and compliance with conditions
of project approval:
 

 
a. If owned by a group of individuals or corporations, an association shall be
formed to assure that all properties and common areas are properly maintained.
 
 
b. The filing of a Declaration of Covenants, Conditions, and Restrictions (or
its equivalent) may be required. 
 
Town
of Woodstock Zoning Regulations § 313(A)(8).  
 
¶ 20.        
Neighbors contend that this section prohibits ownership of separate portions
of the project land by separate owners and that the Environmental Division’s
decision to the contrary was clear error.  Neighbors read the introductory
sentence of the section as limiting who may own project lands, arguing that the
entire land must be owned by one individual or corporation.  This
interpretation appears to be inconsistent with the language authorizing
ownership by a group of individuals or corporations.  Moreover, we cannot
see any reason for the limitation neighbors urge that the ordinance
requires.  It would, for example, prohibit a development with
single-family housing because the purchaser of a house would own the
land.    Indeed, this reading would prohibit all condominiums,
which are defined as “a common interest community in which portions of the real
estate are designated for separate ownership and the remainder of the real
estate is designated for common ownership solely by the owners of those
portions.”   27A V.S.A. § 1-103(8).  The real substance of § 313(A)(8)
lies in the requirement for an association “to assure that all properties and
common areas are properly maintained.”   The opening sentence is
broadly descriptive of the kind of circumstances in which an association is
required.  WCT has met that requirement here.  Neighbors further
contend that the declaration does not satisfy § 313 (A)(8)(a)’s requirement
that “an association shall be formed to assure that all properties and common
areas are properly maintained” because it does not provide a mechanism through
which the units themselves will be maintained.  Town of Woodstock Zoning
Regulations § 313 (A)(8)(a).  Section 8.1 of the Grange Common Interest
Community Declaration provides that the “Association shall at its expense
maintain all of the Common Elements . . . in a good state of repair.” 
While maintenance of the Units is not provided for, the units are not to be
commonly owned.  Again, we conclude that neighbors are urging an
overly-restrictive construction of the ordinance.  The requirement is to
form an association, not to regulate how the association functions in
detail.  We conclude that the requirement is aimed at property owned or
controlled by the association.[5] 
The Environmental Division’s interpretation of § 313(A)(8) was not clear error.
¶ 21.        
Neighbors additionally argue that the declaration violates Title 27A,
the Vermont Common Interest Ownership Act, for a number of reasons. 
Appellants’ Statement of Questions submitted to the Environmental Division did
not raise this issue, and it was raised for the first time in their Proposed
Findings of Facts and Conclusions of Law.  This is insufficient to
preserve the issue, so we consider it waived.  See Mann v. Levin,
2004 VT 100, ¶ 26, 177 Vt. 261, 861 A.2d 1138 (holding that when a
defendant did not raise the affirmative defense of laches during the factual
proceeding and raised it for the first time in proposed findings of fact, the
issue was waived for appeal).
¶ 22.        
Even if the issues were preserved, we fail to see how neighbors can
raise compliance with the Common Interest Ownership Act in a zoning
proceeding.  Nothing in the zoning ordinance requires a landowner to show
compliance with the Act in order to obtain a zoning permit.  Moreover, we
doubt that a municipality could adopt such a requirement.  See 24 V.S.A. §
4411 (Zoning bylaws may permit, prohibit, restrict, regulate, and determine
land development).  The Vermont Common Interest Ownership Act has its own
private remedies, and there is no suggestion that public, regulatory remedies
were intended.[6]
¶ 23.        
Next we turn to neighbors’ argument that the second application did not
sufficiently correct the stormwater disposal system problems which the
Environmental Division identified in the first application.  As we stated
above, WCT both changed the stormwater plan and fully documented its original
elements.  It was changed sufficiently to meet the deficiencies identified
in the first decision.
¶ 24.        
Neighbors argue, however, that the regulations prohibit any increase in
discharge into nearby Vondell Brook, and the stormwater system for the
developed area will increase the discharge.  Section 709(B)(5) of the town
zoning regulations requires site plan review to consider “[t]he adequacy of
surface drainage facilities.”  In conducting this review, the
Environmental Division noted that state regulations “require that the
post-development runoff will be no greater than the pre-development runoff from
a project property, but [they] do not limit whether that runoff can be directed
to a different location than in the pre-development condition.”  Neighbors
rely on this statement to claim that it means that the amount of stormwater
flowing into Vondell Brook cannot increase as a result of the development.
¶ 25.        
Neighbors’ argument is misdirected.  State regulations may contain
a requirement of runoff neutrality, but the zoning ordinance does not. 
Moreover, as stated by the court, the requirement is overall net neutrality,
not neutrality at every discharge point.  Prior to the project, most of
the runoff from the property drained through different properties and reached
the main river through a different brook or by overland flow from Route
4.  The court conducted a thorough review of the discharge into Vondell
Brook and concluded it would adequately handle the surface runoff, even in
flooding conditions.  Neighbors do not challenge this analysis, and we
find no error in it.
¶ 26.        
We note that, prior to submitting the new permit application, WCT
obtained a stormwater discharge permit from the Vermont Agency of Natural
Resources, specifically authorizing the discharge into Vondell Brook.  WCT
also obtained a stormwater construction permit for the period when the project
is under construction.  Under Act 250 Rule 19, the permits create a
rebuttable presumption that the project meets relevant Act 250 criteria. 
See 10 V.S.A. §§ 6086(d), 8504(i).  Relying upon the presumption, the
Environmental Division concluded that the project met the relevant Act 250
criteria with respect to stormwater.  In doing so, the court noted that
neighbors failed to provide expert evidence to rebut the presumption created by
the permits.  
¶ 27.        
Neighbors finally contend that the project’s density violates the town
zoning regulations.  The regulations require that “[t]he proposed
development must be designed to create a stable and desirable environment that
is in harmony with the density and type of adjacent land uses.”  Town of
Woodstock Zoning Regulations § 313(A)(1).  The parcel to be developed is
zoned as Residential Medium Density, a zone that the Environmental Division
pointed out, “not only allows but promotes a density of development consistent
with the design of this project.”  The court found:
 
The neighborhood or visual context of the project is the hamlet or settlement
of West Woodstock. . . . Most of the settlement is located
close to and focused towards the valley floor and Route 4, surrounded by
predominantly wooded hillsides and open fields, with views from the valley
floor of the wooded hillsides and more distant wooded hills.  A large
middle and high school complex with a community indoor arena, and a cluster
housing development of 33 units, are located southwesterly of the project
property on either side of Route 4. . . .
 
  
In the area of the proposed project, the hamlet of West Woodstock contains a
relatively dense group of residential and residential-style buildings on small
lots, 11/2 to 21/2 stories in size, diverse but traditional in design with
characteristic gabled roofs, porches, additions, and dormers.  The
proposed designs for the project buildings are compatible in size and style
with the existing properties in the area.  Although they are by definition
all new, they have been designed with a diversity of building types, roof
forms, and architectural details, to reflect and be compatible with the diverse
elements of the neighboring vernacular architecture.
 
 
The project has been designed to cluster the new residential buildings on the
flatter portion of the site, and to preserve the upland fields and forested
areas as open space. . . . The new residential buildings
surround a small common area and face an inner loop road, giving the project
the appearance and functionality of a small neighborhood, consistent with the
neighborhood along Route 4.  The project has been redesigned so that the
back yards of the new houses, and an area of community gardens, adjoin the back
yards of [neighbors’] . . . existing houses along Route 4,
reinforcing the neighborhood design. . . . 
 
 
The density of project buildings is consistent with the density of buildings in
the existing neighborhood. . . .
 
¶ 28.        
Even if the Environmental Division accepted neighbors’ assertion that
the project could add as many as 140 new residents to West Woodstock, it was
not reversible error to find the project harmonious with adjacent land
uses.  The court’s findings are fully supported by the evidence and the
conclusions are supported by the findings.  The density of the buildings
is consistent with the zoning ordinance and “in harmony with the density and
type of adjacent land uses” as required by § 313(A)(1).  
¶ 29.        
In conclusion, the second application substantially dealt with all of
the identified problems of the first application, and we will not overturn the
Environmental Division when there is no clear error.
III
¶ 30.        
Having determined that the court did not err in determining that the
second application successfully corrected the insufficiencies of the first, we
turn to neighbors’ argument that the Environmental Division’s factual findings
with respect to the Act 250 permit constituted error.  “[W]e will overturn
these findings only where the appellant shows ‘that there is no credible
evidence to support them.’ ”  In re Entergy Nuclear Vt. Yankee
Discharge Permit 3-1199, 2009 VT 124, ¶ 15, 187 Vt. 142, 989 A.2d 563 (quoting
In re Miller Subdivision Final Plan, 2008 VT 74,
¶ 13, 184 Vt. 188, 955 A.2d 1200).  Neighbors first argue that
the court’s findings with regard to aesthetics and harmony with adjacent land
uses were clearly erroneous.
¶ 31.        
The only issue neighbors have raised on appeal relative to the Act 250
permit is their contention that the project violates Criterion 8 of Act
250.  The criterion requires a court to find that a project will not
result in “undue adverse effect on the scenic or natural beauty of the area,
aesthetics, historic sites or rare and irreplaceable natural areas,” before
upholding the Act 250 permit.  10 V.S.A. § 6086(a)(8).  In In re
Times & Seasons, LLC, we described a two-pronged test the court should
use when determining if this element of Act 250 is satisfied: “[I]t determines
if the proposed project will have an adverse aesthetic impact, and if so, it
considers whether the adverse impact would be undue.”  2008 VT 7, ¶ 8, 183 Vt. 336, 950 A.2d 1189.  The Environmental
Division used this so-called “Quechee Test” and determined that the project did
not fail under either of the prongs of the test.  First, the court found
that the project would not result in an adverse impact because the project was
designed with buildings that matched local architecture[7] and preserved upland fields and forested
hillsides visible to passing travelers.  Neighbors have not directly
challenged this conclusion, and it is alone sufficient to uphold the project
against the Criterion 8 challenge.
¶ 32.        
Second, the court concluded that if there were an adverse impact, it was
not undue.  It relied upon the standard from Times & Seasons: 
An
adverse impact is considered undue if any one of the three following
questions is answered in the affirmative: (1) does the project violate a clear,
written community standard intended to preserve the aesthetics or scenic,
natural beauty of the area; (2) does the project offend the sensibilities of
the average person; and (3) has the applicant failed to take generally
available mitigating steps that a reasonable person would take to improve the
harmony of the proposed project with its surroundings.
 
Id. 
Neighbors respond that the planned development violates a clear, written
community standard, relying on the 2007 Woodstock Town Plan, which provides,
“Of prime importance to the quality of life and character of Woodstock are its
open spaces, which include not only open fields and meadows, but also wooded
hillsides, forests, stream corridors and other natural vistas.” 
Woodstock, Vt., Town Plan 76 (2007).
¶ 33.        
We will address this argument, although we find no indication that it
was raised below.  In doing so, we accept that the open space language is
intended, in part, to protect the aesthetics of the Town.  We do not,
however, take the quoted plan language as a clear, written community standard
that no currently open space can be developed anywhere in Woodstock. 
Under such a standard, virtually no housing could be built on land that is
undeveloped.[8] 
Yet, the zoning regulations that regulate development have no prohibition on
development of currently open land in this zone.  See Eastview of
Middlebury, 2009 VT 98, ¶ 21 (project meets Criterion 8, in part, because
it is allowed by the zoning ordinance); 10 V.S.A. § 6086(a)(10) (where
town plan is vague, commission can consider by-laws for interpretation). 
Nor do we think the plan language clearly protects from development a ball
field that is behind a row of houses on a state highway and barely visible to
the public.  As the court noted, the project protects the important part
of the landscape in the area—the hillsides and forested land—and is designed to
be consistent with the surrounding residential development.  
¶ 34.        
The Environmental Division decision that there was no undue adverse
aesthetic impact was not clearly erroneous.
IV
¶ 35.        
We now address neighbors’ claim that the Environmental Division erred in
its denial of their motion to stay the proceedings.  Neighbors made the motion
in March 2010, shortly before WCT filed its motion for summary judgment on the
successive-application issue.  Neighbors sought a stay of this proceeding
until a related action in the superior court regarding water easements on the
project property reached an end.  Neighbors argued that the superior court
action, which they filed against WCT, could have as a result a blocking of the
proposed project and they should not have to incur the expense of a trial in
this action as long as that possibility was present.  They acknowledged
that the separate litigation was likely to take years to reach its end point.
 The court denied the motion with respect to summary judgment proceedings
to determine whether the successive-application doctrine prohibited going forward
with consideration of the project.  The court added: “As the pretrial work
in these cases progresses, and depending on the decision on summary judgment in
the superior court case, the court will entertain specific future motions to
coordinate the scheduling and resolution of these cases with that of the
[s]uperior court case as efficiently as possible, including any requests to
postpone the trial dates that will be scheduled for these cases.”  There
is no indication in the docket entries that neighbors made any motions to
coordinate scheduling the cases or to delay the trial in this case.
¶ 36.        
A stay in this context is a “suspension of proceedings” until a
specified event occurs in another case.  See Stone v. Briggs, 112
Vt. 410, 412-13, 26 A.2d 828, 830 (1942).  It is in the nature of a
continuance.  We have held that a ruling on a motion to continue involves
trial court discretion and will be overturned only if the discretion is
“exercised upon grounds clearly untenable, or to an extent clearly
unreasonable.”  Kokoletsos v. Frank Babcock & Son, 149 Vt. 33,
35, 538 A.2d 178, 179 (1987).  As the United States Supreme Court held in
the leading case of Landis v. North American Co., 299 U.S. 248, 254
(1936), every court has the power “to control the disposition of the causes on
its docket.”  But, how this best can be done “calls for the exercise of
judgment” and the party seeking a stay “must make out a clear case of hardship
or inequity in being required to go forward” if there is a possibility that a
stay will damage someone else.  Id. at 254-55.  “Courts
disapprove stays . . . when a lesser measure is adequate to
protect the moving party’s interests.”  In re Application for Water
Rights, 101 P.3d 1072, 1082 (Colo. 2004).
¶ 37.        
In this case, the ground for the stay asserted by neighbors related to
the expenses of a trial, particularly the employment of expert witnesses. 
Thus, the court properly concluded that it would allow, and would decide, a
motion for summary judgment with respect to the application of the
successive-application doctrine.  The issue to be decided was one of law,
and the record before it was generally sufficient to make that decision. 
We see no abuse of discretion in allowing the summary judgment process on this
issue to go forward.
¶ 38.        
Beyond resolution of that preliminary issue, the court recognized the
circumstances neighbors were in and offered methods to ameliorate any
difficulty neighbors would face in trying both cases.  At the same time it
recognized that neighbors had filed both cases and WCT had a right to efficient
consideration of its permit application.  Neighbors did nothing to take
advantage of the court’s offer.  In these circumstances, we see no
decision to review.  Even if there were an adverse decision, we hold that
the court acted within its discretion.   
¶ 39.        
We have answered neighbors’ argument as it was presented to the trial
court.  As is common in this appeal, however, neighbors have reframed the
issue for the first time in this Court.  Neighbors note that the case went
to trial in the superior court with a jury verdict in July 2010 that the
project unreasonably interfered with the water rights of one of the neighbors.
 Based on that event, the neighbors argue that the Environmental Division
committed error by not staying the proceeding as of that time.  There is,
however, no indication that neighbors renewed their motion in the trial
court.  Moreover, there was a clear dispute over the significance of the
jury verdict since the superior court still had to consider injunctive relief,
that is, whether WCT could move the water line, and the two trials became
separated by a number of months.  It is sufficient to hold that neighbors
have waived this argument by raising it for the first time on appeal and by
failing to obtain an adverse ruling from the trial court.
V
¶ 40.        
Finally, we turn to neighbors’ contention that the Environmental
Division acted outside its jurisdiction when it required WCT “to add the location
of the Smith spring rights to the appropriate existing conditions plan,
together with any necessary note regarding the pendency of litigation over the
Smith spring rights or easement.”  The parties agree that the
Environmental Division does not have jurisdiction to determine private property
rights.  See Nordlund v. Van Nostrand, 2011 VT 79, ¶ 17, 190 Vt. 188, 27 A.3d 340.  The aforementioned
condition, however, does not affect private property rights; rather, it merely
requires WCT to map already existing rights pursuant to the Woodstock zoning
regulations.  Town of Woodstock Zoning Regulations § 313(C)(3).
¶ 41.        
It is entirely within the jurisdiction of the Environmental Division to
impose conditions on permits.  See Entergy, 2009 VT 124, ¶
54.  The location of certain easements was in dispute when the court
imposed this condition, but requiring the easements to be drawn on the existing
conditions plan does not constitute a property-rights adjudication. 
Furthermore, the Environmental Division was sensitive to the concurrent
litigation when it imposed the condition, requiring that the pending litigation
be noted on the plan.  The condition was based on the requirements of the
Woodstock zoning ordinance, and it was within the court’s jurisdiction and
discretion to require it.
Affirmed.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
At the time of the first appeal to this body, it was known as the
“Environmental Court,” but it is now the Environmental Division of the Superior
Court.  For the purpose of consistency, this opinion will refer to the
“Environmental Division,” even when discussing the actions of the Environmental
Court.


[2] 
In this opinion, we refer to the zoning regulations in effect at the time of
the applications, which were adopted in 2002.  These regulations were
repealed by Town of Woodstock Zoning Regulations § 104 (2010) and replaced with
new ones.


[3] 
Neighbors also claimed that they had acquired part of the project land by
adverse possession, but they did not prevail on that claim in the superior
court.


[4] 
In its denial of the first application, the Environmental Division noted that
its decision did not preclude WCT from making a second application addressing
the listed problems.  This is not unlike the court’s dismissal “without
prejudice” discussed in Armitage.  See 2006 VT 113, ¶ 6.  The
inclusion of this language correctly states the law, but does not affect the
successive-application analysis.


[5] 
We recognize that a declaration could provide that maintenance of individual
units not owned by the association is an association responsibility.  See
27A V.S.A. § 3-107(a).  We believe, however, that the point of the zoning
requirement is to ensure that some entity or person is responsible for the
maintenance of each part of the property.  Consistent with that purpose,
the declaration makes the association responsible for maintenance of certain
parts of the units—exterior siding, roofs, porches, party walls and
driveways—that might not be maintained by individual unit owners.  It is
consistent with that purpose, and the language of the ordinance, for individual
unit owners to be responsible for maintenance of the interior of their units,
as provided for by the WCT declaration.  Such a reading is consistent with
the ordinance as a whole because it does not try, assuming it could, to
regulate how housing units outside of common interest communities are
maintained.  


[6] 
The inappropriateness of raising compliance with Act requirements in a zoning
proceeding is clearly demonstrated by the issues neighbors raise.  First,
neighbors raise that the declaration requires unit owners to purchase a license
for use of common elements, but the Act requires that access to common elements
be free.  Second, neighbors argue that the declaration is illegal because
it allocates a larger share of the ownership to declarant and its affiliates
than is allowed under the Act.  Third, neighbors argue that the
declaration allows the subdivision of a unit without any restriction on the
number of new units as required by the Act.  Fourth, neighbors argue that
the declaration does not specifically mention the need to relocate the
waterline easements of some of the neighbors.  The first three claims
involve rights between purchasers and the developers.  The neighbors have
no legitimate interest in these rights.  Neighbors cite no Act requirement
for their fourth claim; we cannot see one.  


[7] 
In making their argument, neighbors describe the project as a “congested
collection of buildings with a Disney like effort to mimic a New England
village.”  We find this characterization greatly exaggerated.  It and
other similar mischaracterizations do not help neighbors’ cause.


[8] 
As often happens in town plans, the language supports policies that are
sometimes in conflict.  Thus, the Woodstock plan provides that “Woodstock
needs additional affordable housing units for its current residents and
employees in order to maintain a broad social-economic base.”  Woodstock,
Vt., Town Plan 59 (2007).  That the plan does not attempt to resolve a
conflict in objectives, when it occurs, is evidence that it does not set a
“clear” community standard.



