                                 STATE OF VERMONT

                              ENVIRONMENTAL COURT

                                                }
In re: R.L. Vallee, Inc. PUD – Preliminary Plat }       Docket No. 100-5-07 Vtec
In re: R.L. Vallee, Inc. PUD – Final Plat       }       Docket No. 101-5-08 Vtec
        (Appeals of Timberlake Associates, LLP) }
                                                }

                        Decision and Order on Pending Motions

       Appellant Timberlake Associates, LLP, appealed from two decisions of the

Development Review Board (DRB) of the City of South Burlington, approving a

preliminary plat application and a final plat application by Appellee-Applicant R.L.

Vallee, Inc. for a Planned Unit Development (PUD) at Spillane’s Service Center at 811

Williston Road. Appellant is represented by David L. Grayck, Esq.; Appellee-Applicant

is represented by Thomas G. Walsh, Esq.; and the City is represented by William E.

Flender, Esq.    Appellee-Applicant has moved for partial summary judgment on

Questions 3 and 23 of the Consolidated Statement of Questions. Appellee-Applicant

has also moved to dismiss Questions 12, 17, 18, 19, and 21 of the Consolidated

Statement of Questions. For clarity of reference, this decision will refer to the questions

from the statement of questions in the appeal of the preliminary plat with the

designation “PQ,” and in the statement of questions in the consolidated appeals with

the designation “CQ.”

       In Docket No. 100-5-07 Vtec, Appellant appealed the DRB decision granting

preliminary plat approval to Appellee-Applicant, and filed a statement of questions

containing twenty-one questions. These questions did not refer to any specifically-

numbered sections of the zoning ordinance. After the Court’s August 17, 2007 decision

and order on cross-motions for partial summary judgment, parties agreed to await the

DRB’s decision on the final plat approval, allowing any new appeal of the final plat
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approval to be consolidated with the appeal of the preliminary plat approval. The

Court ruled on an additional cross-motion for partial summary judgment as to PQ 21 on

February 7, 2008.

       In Docket No. 101-5-08 Vtec, Appellant appealed the DRB decision granting final

plat approval, and filed a Statement of Questions containing twenty questions. These

questions did refer to specifically-numbered sections of the zoning ordinance. The

appeals were consolidated, and Appellant filed a Consolidated Statement of Questions

combining the questions from both appeals that remained after the various motion

rulings.

       Appellee-Applicant has now moved to dismiss the following consolidated

questions, which ask whether the proposed project complies with the respective

specifically-numbered sections of the zoning ordinance: CQ 12: § 15.18(A)(8); CQ 17:

§13.01(A); CQ 18: § 13.01(B)(1); CQ 19: § 13.01(N)(2); and CQ 21: § 14.06(B)(3).

       Appellee-Applicant has also moved for summary judgment on CQ 3 and CQ 23.

CQ 3 asks whether the project should the project “be required to meet the minimum

setback and coverage requirements” of the zoning ordinance? CQ 23 asks whether the

project requires conditional use approval “because it is multiple uses on one lot?” The

following facts are undisputed unless otherwise noted.

       Appellee-Applicant owns a 0.47-acre property with an existing service station

and convenience store at 811 Williston Road, in the Commercial 1 zoning district and

the Traffic Overlay 1 zoning district. Appellant owns an L-shaped parcel of property

with an existing service station and convenience store at 801 Williston Road, which

adjoins the southerly and westerly boundaries of Appellee-Applicant’s property.

       Appellee-Applicant applied for preliminary plat approval for a Planned Unit

Development on the subject property, including the replacement of the existing 2,313

square foot building with a new building of the same square footage. The new building

is proposed to house two uses: a convenience store (1,079 square feet) and a short-order
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restaurant (1,234 square feet). Appellee-Applicant also proposes to reduce the number

of fueling positions on the property from eight to six.

       Appellee-Applicant’s proposal was submitted for review as a Planned Unit

Development under Article 15 of the City of South Burlington Land Development

Regulations (Regulations).1 Section 2.02 of the Regulations define a PUD as:

       [o]ne or more parcels of land to be developed as a single entity, the plan
       for which may propose any authorized combination of density or intensity
       transfers or increases, as well as the mixing of land uses. This plan, as
       authorized, may deviate from bylaw requirements that are otherwise
       applicable to the area in which it is located with respect to the area,
       density or dimensional requirements or allowable number of structures
       and uses per lot as established in any one or more districts created under
       the provisions of these regulations. . . .
Section 15.01 states that the purpose of PUD review is “to provide relief from the strict

dimensional standards for individual lots in these Regulations in order to encourage

innovation in design and layout, efficient use of land, and the viability of infill

development and re-development in the City’s Core Area . . . .”

       PUD review is required for certain applications and elective for others.        §§

15.02(B), (C).   Appellee-Applicant applied under § 15.02(C) to have its proposal

reviewed as a PUD; that section allows “any applicant for site plan, conditional use

and/or subdivision review, or any other application for land development requiring

action by the [DRB]” to “request review pursuant to the PUD process and regulations.”

       Article 15 of the Regulations sets out the procedures and considerations for PUD

approval. Like subdivision approval, PUD review is a three-stage process consisting

first of sketch plan review under § 15.05, followed by preliminary plat review, §§




1All references to section numbers in this decision refer to sections of the City of South
Burlington Land Development Regulations unless otherwise noted.


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15.08(A), (B), and then by final plat review. §§ 15.08(C)-(E). Specific criteria for review

of proposed PUDs are found in § 15.18.

       Proposed PUD projects must also obtain site plan approval from the DRB under

Article 14 of the Regulations. § 14.03(A)(6). Specific criteria for site plan approval are

found in § 14.06. Certain “Supplemental Regulations” found in Article 13 also apply to

proposed PUD projects, including specifically those in § 13.01 relating to “Off-Street

Parking and Loading.”



Motion to Dismiss

       Appellee-Applicant argues that CQ 12, 17, 18, 19, and 21 should be dismissed

because they were not raised in the appeal of the preliminary plat approval. However,

Appellant did raise the issues in CQ 12, 17, 18, 19, and 21 in the appeal of the

preliminary plat approval.     The Statement of Questions filed in the appeal of the

preliminary plat approval simply asked whether the project complied with certain

requirements of the Regulations (or with requirements paraphrased from the

Regulations) without specifying the specifically-numbered section of the Regulations

that imposed the particular requirement.          The more broadly-worded questions

regarding the preliminary plat approval in fact were inclusive of all the issues raised in

the five questions at issue in the present motion.2

       CQ 12 asks whether the proposed project complies with a specific subsection of

the PUD review criteria found in § 15.18. Specifically, CQ 12 refers to § 15.18(A)(8),

2   Neither the Rules for Environmental Court Proceedings nor the statute granting
jurisdiction in these cases require issues to be raised at a preliminary approval stage in
order to preserve them for appeal at the final approval stage. See 10 V.S.A. § 8504; 24
V.S.A. § 4471; V.R.E.C.P. 5. In re Appeal of Carroll, 2007 VT 19, 181 Vt. 383, only
specifically addresses the participation requirement for appellant standing under 24
V.S.A. § 4471: that participation at one stage of the multistage approval process is
sufficient to meet that participation requirement. Carroll, 2007 VT 19, ¶¶ 1, 15.


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regarding whether certain services and infrastructure have been designed in a manner

that allows extension to adjacent properties. PQ 6 asked whether the project meets “the

applicable criteria for a PUD.” Since the applicable criteria for PUD review are found in

§ 15.18, PQ 6 incorporated all of the subsections of § 15.18, including the criteria in §

15.18(A)(8) referenced in CQ 12. Moreover, the text of CQ 12 is the equivalent in

content to that of PQ 13. Compare CQ 12 (“[w]hether the [p]roject complies with [ ]

Section 15.18(A)(8) with respect to whether the roads, recreation paths, stormwater

facilities, sidewalks, landscaping, utility lines and lighting have been designed in a

manner that is compatible with the extension of such services and infrastructure to

adjacent properties,”) with PQ 13 (“[i]s the [p]roject designed in a manner that roads,

utilities, sidewalks, and lighting are designed to be consistent with City utility and

roadway plans and standards, and adjacent properties?”).

      CQ 17, 18, and 19 all ask whether the project complies with certain specific

subsections of the Supplemental Regulations regarding “Off-Street Parking and

Loading” found in § 13.01.      Two questions in the appeal of the preliminary plat

approval also related to parking issues: PQ 16 and PQ 17. PQ 16, which asked whether

the project is “designed to provide . . . safe pedestrian movement, and adequate parking

areas,” is broad enough to include the parking and parking-related safety issues in §

13.01 that are now raised by CQ 17, 18, and 19.

      CQ 21 asks whether the project complies with a specific subsection of the site

plan review criteria found in § 14.06. PQ 15 asked whether the project met the site plan

review criteria of the ordinance. Since the site plan review criteria are found in § 14.06,

PQ 15 incorporates all of the subsections of § 14.06, including § 14.06(B)(3), the subject

of CQ 21.

      As all five of the challenged consolidated questions were found within the initial

statement of questions in Docket No. 100-5-07 Vtec, Appellee-Applicant’s Motion to

Dismiss them must be DENIED.
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Motion for Summary Judgment

      Appellee-Applicant has moved for summary judgment on CQ 3 and 23, which

ask whether the project must meet minimum setback and coverage requirements, and

whether conditional use approval is required for the project.

      The DRB has authority to modify minimum setback and coverage requirements

for PUDs under § 15.02(A)(3), which states that, “[i]n conjunction with PUD review, the

modification of these [ ] Regulations is permitted subject to the conditions and

standards in this Article and other applicable provisions of these Regulations.” This

allows the DRB to modify any portion of the Regulations, including those related to

setbacks and coverage, for projects applying under the PUD review procedures.

Material facts are disputed, however, as to whether any of the requested modifications

of the regulatory requirements should be granted by the Court; so that Appellee-

Applicant’s Motion for Summary Judgment as to CQ 3 must be DENIED..

      In review of a PUD application, a separate conditional use permit is not required,

pursuant to § 15.03(A). That section provides that “[i]n any application for PUD review,

all uses allowed as permitted or conditional uses in the underlying district(s) involved

in the application shall be deemed to be permitted uses and a separate conditional use

permit or permits shall not be required” (emphasis added). Under § 15.02(C), any

applicant for a permit requiring DRB review may apply for approval of the project as a

PUD. Thus a separate conditional use permit is not required in this PUD proceeding,

and Appellee-Applicant’s Motion for Summary Judgment as to CQ 23 must be

GRANTED.

      Of course, the issue of whether the project meets all the standards for PUD

approval will be argued by the parties in their post-trial memoranda based on the

evidence submitted at trial, including whether the purpose statement regarding PUDs

in § 15.01 (to encourage innovation in design and layout, and efficient use of land) has

any independent regulatory effect.
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      Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Appellee-Applicant’s Motion for Partial Summary Judgment on Question 3 of the

Consolidated Statement of Questions is DENIED, Appellee-Applicant’s Motion for

Partial Summary Judgment on Question 23 of the Consolidated Statement of Questions

is GRANTED, and Appellee-Applicant’s Motion to Dismiss Questions 12, 17, 18, 19, and

21 of the Consolidated Statement of Questions is DENIED.



      Done at Berlin, Vermont, this 3rd day of October, 2008.




                          _________________________________________________
                                Merideth Wright
                                Environmental Judge




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