                                   STATE OF VERMONT

                                  SUPERIOR COURT
                              ENVIRONMENTAL DIVISION

                                                    }
In re Highlands Development Co., LLC                }
       and JAM Golf, LLC                            } Docket No. 194-10-03 Vtec
       Master Plan Application                      }
                                                    }

        Decision and Order on Motion for Reconsideration or to Alter or Amend

       Appellant-Applicants Highlands Development Co., LLC and JAM Golf, LLC

(Applicants) appealed from a decision of the Development Review Board (DRB) of the

City of South Burlington, approving 297 of the 3571 residential dwelling units sought in

Applicants’ master plan application for a 450-acre Planned Unit Development.

Applicants are represented by Mark G. Hall, Esq. and William A. Fead, Esq.; the City of

South Burlington is represented by Amanda S.E. Lafferty, Esq.2

       Applicants previously moved for summary judgment in this appeal, asking the

Court to invalidate several provisions of the 2003 South Burlington Land Development

Regulations (2003 Regulations) as being unconstitutionally vague.3 The Court issued its

decision and order regarding Applicants’ Motion for Summary Judgment on February

2, 2010. In re Highlands Development Co., LLC and JAM Golf, LLC Master Plan

1 Many of these units have already been constructed or approved, leaving 50 units in
four development areas at issue in this appeal. In re Highlands Development Co., LLC
and JAM Golf, LLC Master Plan Application, No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2,
2010), slip op. at 8; also see footnote 5 for an explanation of why the number of units
was reduced from 358 to 357.
2
   In addition, Marie Ambusk has informational status in this appeal, but has not
entered an appearance as a party.
3  In that motion, Applicants sought invalidation of eight provisions of the 2003
Regulations applicable to their master plan application: § 15.18(A)(4), § 15.18(A)(5),
§ 15.18(A)(6), § 15.18(A)(10), § 15.18(B)(1), § 15.18 (B)(2), § 15.18 (B)(3), and § 15.18 (B)(4).
                                               1
Application, No. 194-10-03 Vtec (Vt. Envtl. Ct. Feb. 2, 2010) (the Summary Judgment

Decision).

       In that decision, the Court granted summary judgment in favor of the City with

regard to §§ 15.18(A)(5), (A)(6), and (B)(4) in their entirety, and with regard to

§§ 15.18(A)(4), (A)(10), and (B)(2) in certain respects, determining that those specific

provisions were not unconstitutionally vague. Id. at 31. The Court granted summary

judgment in favor of Applicants with regard to §§ 15.18(B)(1) and (B)(3) in their

entirety, and with regard to § 15.18(A)(4) in certain respects, determining that those

specific provisions were unconstitutionally vague. Id. With respect to the remainder of

§§ 15.18(A)(4), (A)(10), and (B)(2) the Court denied summary judgment on the basis

either that material facts had not been provided to the Court or that resolution of the

motion was premature at that time. Id. at 31–32.

       Applicants moved for reconsideration of the Summary Judgment Decision under

V.R.C.P. 59(e). Applicants ask this Court to reconsider its conclusions regarding those

sections on which it ruled in favor of the City or ruled that summary judgment was

premature (§§ 15.18(A)(4), (A)(5), (A)(6), and (A)(10), and §§ 15.18(B)(2) and (B)(4)), and

to conclude that those provisions are unconstitutionally vague.4 The briefing schedule

was extended at the request of the parties; a further extension resulted from the fact that

a legible copy of one exhibit was requested by the Court (see note 6 below).



Standard Applicable to a Motion to Alter or Amend a Judgment

       Although there is no specific authorization in the civil or environmental rules

governing a motion to “reconsider” a decision, the court treats such a motion as one to

4
  Applicants also ask this Court to conclude that § 15.18(B)(3) is unconstitutionally
vague based on the South Burlington Open Space Strategy. However, as the Court has
already granted summary judgment to Applicants that “§ 15.18(B)(3) is too vague to be
applied by the court to the contested development areas,” id. at 19, it is unnecessary to
reach this additional argument for its vagueness.
                                            2
alter or amend a judgment under V.R.C.P. 59(e). In re Appeal of Berezniak, No. 171-9-

03 Vtec, slip op. at 3 (Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.). Vermont Rule of Civil

Procedure 59(e), which is substantially identical to Federal Rule 59(e), “gives the court

broad power to alter or amend a judgment on motion.” Drumheller v. Drumheller,

2009 VT 23, ¶ 28 (quoting V.R.C.P. 59, Reporter's Notes). Rule 59(e) is a codification of

the trial court's “inherent power to open and correct, modify, or vacate its judgments.”

Id. (citing West v. West, 131 Vt. 621, 623 (1973)).5

       A Rule 59(e) motion “allows the trial court to revise its initial judgment if

necessary to relieve a party against the unjust operation of the record resulting from the

mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v.

Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996) (citing In re Kostenblatt, 161 Vt. 292,

302 (1994)).   The limited functions of a motion for reconsideration are “to correct

manifest errors of law or fact on which the decision was based, to allow the moving

party to present newly discovered or previously unavailable evidence, to prevent

manifest injustice, or to respond to an intervening change in the controlling law.” In re

Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct. July 10,

2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and Procedure:

Civil § 2810.1 (2d ed. 1995)); see also Appeal of Van Nostrand, Nos. 209-11-04 &

101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.). A motion for

reconsideration should not be used to “relitigate old matters” or “raise arguments or


5 The Court considers motions for reconsideration or to alter or amend orders resulting
from pretrial motions under its “inherent powers to reconsider interim decisions[] so as
to avoid error or manifest injustice.” In re Mastelli Constr. Application, No. 220-10-07
Vtec, slip op. at 1 (Vt. Envtl. Ct. Nov. 14, 2008) (Durkin, J.), aff’d, Supreme Ct. No. 2009-
072 (Sept 4, 2009) (unpub. Mem.); see also In re Sisters & Bros. Inv. Group, LLP, No. 106-
5-06 Vtec, slip op. at 1–2, n.1 (Vt. Envtl. Ct. June 27, 2007) (Durkin, J.), aff’d, 2009 VT 58
(stating that “the more appropriate discretionary exercise” with such a motion “is to
review it as a more general reconsideration request”)(citing Morrisville Lumber Co. v.
Okcuoglu, 148 Vt. 180, 182 (1987).
                                              3
present evidence that could have been raised prior to entry of the judgment.” Id.

Similarly, mere disagreement between the moving party and the court is not grounds

for reconsideration. In re Boutin PRD Amendment, No. 93-4-06 Vtec, slip op. at 1–2 (Vt.

Envtl. Ct. May 18, 2007) (Wright, J.).



Applicable Principles of Statutory Construction

       In general, as stated in the Summary Judgment Decision, courts are directed to

approach regulatory construction in the same manner as statutory interpretation. In re

Williston Inn Group, 2008 VT 47, ¶ 14, 183 Vt. 621. In the present case, the Court must

apply at least two principles of statutory construction. Applicants argue that the two

principles conflict, and that one should take precedence over the other.

       The first principle of statutory construction applicable to this case is that the

Court should construe the 2003 Regulations “to avoid constitutional difficulties, if

possible,” In re G.T., 170 Vt. 507, 517 (2000), because a court should “not decide

constitutional questions unnecessarily.” In re Picket Fence Preview, 173 Vt. 369, 375

(2002) (citing State v. Clarke, 145 Vt. 547, 551 (1985)). Even if “constitutional issues have

been argued and briefed, they will not be considered by [the] Court unless disposition

of the case requires it.” State v. Patnaude, 140 Vt. 361, 368 (1981) (citing In re Wildlife

Wonderland, Inc., 133 Vt. 507, 520 (1975)).       Therefore, as the Court stated in the

Summary Judgment Decision, “where a reasonable alternative for resolution exists, the

court will avoid overturning a regulation on constitutional grounds.”             Summary

Judgment Decision at 14 (citing Central Vt. Ry., Inc. v. Dep’t of Taxes, 144 Vt. 601, 604

(1984)). This presumption of constitutionality, which is well established under Vermont

law, applies when a court analyzes a constitutional challenge to any type of statute or

regulation, not just to land use laws.

       Another principle of statutory construction, specific to land use regulation,

establishes that “[b]ecause land use regulation is in derogation of the common law, any
                                             4
ambiguity is resolved in favor of the landowner.” In re Bennington School, Inc., 2004

VT 6, ¶ 12, 176 Vt. 584 (quoting In re Miserocchi, 170 Vt. 320, 324 (2000)). See also, e.g.,

Kremer v. Lawyers Title Ins. Corp., 2004 VT 91, ¶ 8, 177 Vt. 553 (citing In re Vitale, 151

Vt. 580, 584 (1989)); Appeal of Weeks, 167 Vt. 551, 555 (1998). In the present appeal, if

the Court determines that the 2003 Regulations are ambiguous, it must resolve the

ambiguity in favor of Applicants.

       These two principles of regulatory construction do not necessarily conflict with

one another, nor are they necessarily mutually exclusive in practice. Applicants argue

that the Court applied the presumption of constitutionality at the expense of the

principle that ambiguities are to be resolved in favor of the landowner, claiming that the

latter is the “most important statutory-interpretation canon applicable to interpreting

land-use regulations.”    Applicants’ Motion for Reconsideration, at 1 (Mar. 5, 2010)

[hereinafter Motion for Reconsideration]. However, to the extent possible, the Court

considers both principles when analyzing any contested regulations.



Section 15.18(A)(4) of the 2003 Regulations

Section 15.18(A)(4) of the 2003 Regulations requires that:

       The project’s design respects and will provide suitable protection to
       wetlands, streams, wildlife habitat as identified in the Open Space
       Strategy, and any unique natural features on the site. In making this
       finding the DRB shall utilize the provisions of Article 12 of these
       Regulations related to the wetlands and stream buffers, and may seek
       comment from the Natural Resources Committee with respect to the
       project’s impact on natural resources.
       In the Summary Judgment Decision, the Court held that this section was

unconstitutionally vague as it related to “unique natural features,” but held that it was

constitutional as it related to “wetlands” and “streams” because of the reference to

Article 12 of the 2003 Regulations. Summary Judgment Decision at 18. With respect to

“wildlife habitat,” however, the Court determined that “material facts [were] in dispute,
                                              5
or at least ha[d] not been provided to the Court, to allow the Court to determine

whether the Open Space Strategy identifies the ‘wildlife habitat’ that must be protected

and defines what level of protection of wildlife habitat is ‘suitable’ in this location,” as

the parties had not provided a copy of the Open Space Strategy. Id. at 18–19.

       The Court has now been provided with a legible copy of the Open Space

Strategy, an undisputed exhibit that had not previously been provided.6 In the current

motion, Applicants essentially renew their motion for summary judgment with regard

to § 15.18(A)(4), only as it relates to protection of “wildlife habitat,” on the basis of this

newly-provided exhibit.

       In order to be upheld as it relates to “wildlife habitat,” § 15.18(A)(4), considered

together with the Open Space Strategy, must provide sufficient standards for the Court

to apply, first, in identifying what “wildlife habitat” is to be protected, and, second, in

determining whether the project “respects and will provide suitable protection to” that

wildlife habitat. Although the Open Space Strategy does specifically identify and map

some wildlife “sightings” and wildlife “corridors” in South Burlington, see Open Space

Strategy, at 16–23 (involving “Public Resource Mapping” and the “Natural and Built

Resource Inventory”), neither the strategy nor the regulation provides standards for the

DRB or this Court to determine when a “project’s design respects and will provide

suitable protection to” any of the identified wildlife habitats, or, indeed, how to tell how

much protection is “suitable.” Thus, even considering the Open Space Strategy as

having been incorporated by reference7 in § 15.18(A)(4), that section as it relates to




6 A photocopied version of this 2002 document, with an illegible legend on each map
page, was provided with the memoranda on the present motion; at the request of the
Court, a legible copy of the document was filed with the Court on June 17, 2010.
7 In addition, the paragraph describing “Wildlife Sightings and Corridors” on page 19

of the Open Space Strategy refers the reader for “more detailed information” to yet
another document that has not been provided to the Court: “Where the Wild Things
                                              6
“wildlife   habitat”   does   not      articulate   standards    specific   enough   to   guide

decisionmakers and applicants in analyzing a proposal.            Therefore, § 15.18(A)(4) as it

relates to “wildlife habitat” is unconstitutionally vague and unenforceable.



Section 15.18(A)(5) of the 2003 Regulations

       Section 15.18(A)(5) of the 2003 Regulations requires that:

       The project is designed to be visually compatible with the planned
       development patterns in the area, as specified in the Comprehensive Plan
       and the purposes of the zoning district(s) in which it is located.
       As stated in the Summary Judgment Decision, in order for § 15.18(A)(5) to be

upheld it must lay out “sufficient standards for the Court to apply, first, to identify

what the ‘planned development patterns’ are in the area by looking to the

[Comprehensive] Plan and the purposes of the zoning district, and, second, to

determine whether the proposed project will be ‘visually compatible’ with those

planned development patterns.” Summary Judgment Decision at 21. In the present

motion, Applicants do not seek reconsideration of the Court’s conclusion that the

purpose statement found in § 9.1 of the 2003 Regulations, along with Chapter VII of the

Comprehensive Plan, were specific enough to define the “planned development

patterns” of the area. Id. at 21–23.

       In the Summary Judgment Decision at 24, the Court determined that the

standard stated in § 15.18(A)(5) requiring the project to be “visually compatible” with

the planned development patterns in the area is a sufficient standard to guide the

reviewing body and is not impermissibly vague.                  Although this is a municipal

application rather than one under Act 250, 10 V.S.A. ch. 151, and although expert

testimony may be required on visual compatibility, the Court ruled that the “visually



Are: Large Mammal Habitats and Corridors in South Burlington, Vermont,” apparently
published by the Winooski Valley Park District.
                                                7
compatible” component of § 15.18(A)(5) could be analyzed in the context of the first

prong of the so-called Quechee Lakes test. First articulated by In re Quechee Lakes

Corp., Permit Nos. 3W0411-EB & 3W0439-EB, Findings of Fact, Concl. of Law, & Order,

at 18–20 (Vt. Envtl. Bd. Nov. 4, 1985), this test “guides a reviewing body in determining

a project’s compatibility with the surrounding area by asking: ‘Will the proposed

project be in harmony with its surroundings—will it “fit” the context in which it will be

located.’” Summary Judgment Decision at 24. The Court concluded that the “historical

usage” of the first prong of the Quechee Lakes test “provides adequate guidance to a

reviewing body in applying § 15.18(A)(5).” Id. Applicants seek reconsideration of the

concept that the first prong of the Quechee Lakes test can be used to provide guidance

when applying the “visually compatible” component of § 15.18(A)(5).          Motion for

Reconsideration, at 16–17.

      Applicants argue that the “compatibility” standards found within the first prong

of the Quechee Lakes test have “vitality . . . only in conjunction with six other

subcriteria for just making the determination as to whether the impact of development

is adverse.” They argue that the “compatibility” component of the Quechee Lakes test

is not a “standard unto itself” that may be used under § 15.18(A)(5).        Motion for

Reconsideration at 16. The Court did not intend to suggest that the compatibility

component of the Quechee Lakes test should be applied directly to this municipal

decision. Rather, the existence of the Quechee Lakes compatibility analysis, already

well-established by the time the 2003 Regulations were adopted, shows that visual

compatibility is a concept that can be applied by the decisionmaker, even if expert

evidence is necessary for that purpose.

      Thus, when applied in light of the guidance offered by the history of Quechee

Lakes analysis, and expecting expert evidence on visual compatibility to assist the

Court, § 15.18(A)(5) is not unconstitutionally vague and unenforceable. Applicants’

motion to reconsider is denied as to § 15.18(A)(5).
                                            8
Section 15.18(A)(10) of the 2003 Regulations

       Section 15.18(A)(10) of the 2003 Regulations requires that the project be

“consistent with the goals and objectives of the Comprehensive Plan for the affected

district(s),” in the present case, the Southeast Quadrant.

       Applicants first argue that § 15.18(A)(10) is unenforceable because “the Vermont

Supreme Court has already held that the applicable [Comprehensive] Plan is

unenforceable.” Motion for Reconsideration, at 8 (citing In re Appeal of JAM Golf, LLC,

2008 VT 110, ¶ 18, 185 Vt. 201). This argument overstates the Supreme Court’s holding

as to the South Burlington Comprehensive Plan in Appeal of JAM Golf.8 In that case, it

is essential to note that the Vermont Supreme Court first concluded that municipalities

do have authority to require proposed projects “to conform to their city plan” as long as

there is a “specific policy set forth in the plan,” and that policy is “stated in language

that is clear and unqualified, and creates no ambiguity.” Appeal of JAM Golf, 2008 VT

110, ¶¶ 16-19 (quoting In re John A. Russell Corp., 2003 VT 93, ¶ 16, 176 Vt. 520). See

also, e.g., 24 V.S.A. § 4414(3)(A)(ii) (defining the character of an area, for the purposes of

conditional use approval, by the “specifically stated policies and standards of the

municipal plan” (emphasis added)). Thus, the City had authority to enact

§ 15.18(A)(10); the issue for analysis is instead whether the Comprehensive Plan is

sufficiently specific and unambiguous as to any applicable goal or objective.

       In analyzing municipal regulations that require conformance with a municipal

plan such as the South Burlington Comprehensive Plan, the Supreme Court has

declined to apply any provision of the plan that “sets forth an abstract policy . . . but

provides no specific standards to enforce the policy, or is at best, ambiguous and in

conflict with applicable zoning provisions.” John A. Russell Corp., 2003 VT 93, ¶ 17


8 Although the City adopted a revised Comprehensive Plan in 2006, the master plan
application that is the subject of the present appeal is to be reviewed under the 2001
Comprehensive Plan, the same Comprehensive Plan at issue in Appeal of JAM Golf.
                                              9
(internal citations and quotations omitted). See also, e.g., Appeal of JAM Golf, 2008 VT

110, ¶ 17 (“[C]ity authorities may not deny permission for a project when there is not a

‘specific policy set forth in the plan.’” (quoting John A. Russell Corp., 2003 VT 93, ¶ 16).

Based on this reasoning, in Appeal of JAM Golf the Supreme Court concluded that

certain “aspects” of the Comprehensive Plan were “too ambiguous to be enforceable.”

Id. at ¶¶ 18–19. Specifically, the Court held that the provisions of the Comprehensive

Plan requiring proposed projects to “protect wildlife corridors and habitat” and

“protect scenic views,” in combination with the plan’s “general policy of promoting

growth and residential development in the Quadrant,” were vague and unenforceable

as applied to the Taft Subdivision development area under the 2002 Regulations. Id.

       On the other hand, the Supreme Court did not hold that the Comprehensive Plan

as a whole was unconstitutionally vague and unenforceable, and did not conduct a

constitutional analysis regarding any other provisions of the Comprehensive Plan as no

other provisions were at issue in that appeal. Accordingly, it is appropriate for this

Court to consider other aspects of the Comprehensive Plan, not specifically struck down

by the Supreme Court in Appeal of JAM Golf, as applied to the four development areas

at issue in the present master plan application. It is also appropriate for this Court to

limit its analysis to only those provisions of the Comprehensive Plan that are

specifically at issue in the present appeal, just as the Supreme Court limited its analysis

in Appeal of JAM Golf.9


9 As this Court discussed in the Summary Judgment Decision at 28, to pronounce on
the constitutionality of the 2001 Comprehensive Plan as a whole, or on any other
provisions of the Comprehensive Plan not at issue regarding Applicants’ master plan
application, would require the Court to rule on an unnecessary constitutional issue and
would constitute an improperly advisory opinion. See In re Picket Fence Preview, 173
Vt. 369, 375 (2002) (stating that courts should “not decide constitutional questions
unnecessarily”)(citing Clarke, 145 Vt. at 551). See also State v. Patnaude, 140 Vt. 361,
368 (1981) (stating that constitutional issues “will not be considered by this Court unless
disposition of the case requires it”) (citing Wildlife Wonderland, 133 Vt. at 520).
                                            10
      Applicants also incorrectly characterized the Summary Judgment Decision as

having “affirmed the DRB’s conclusion that the ‘west-to-east layout’ proposed by the

Heatherfields/Lot 108 area and the ‘installation of road infrastructure across this area

directly contradicts the Comprehensive Plan.’”       Motion for Reconsideration, at 8

(emphasis added). To the contrary, in the Summary Judgment Decision, the Court did

not even reach the merits of the application under § 15.18(A)(10), much less “affirm”

any of the DRB’s conclusions.10 Rather, the Court only reached the issue of whether the

specific goals and objectives of the Comprehensive Plan for the Southeast Quadrant

relating to the lot layout and road infrastructure of the Heatherfields/Lot 108 area were

specific enough to withstand a constitutional challenge. All the Court concluded was

that the Comprehensive Plan provisions were sufficiently specific to be applied to the

lot layout and road infrastructure of the Heatherfields/Lot 108 area on the merits of the

master plan application. Summary Judgment Decision at 29. The Court did not reach a

decision on the merits of the master plan application under § 15.18(A)(10) or any other

provision of the 2003 Zoning Regulations.       The issue of whether the master plan

application, as to the lot layout and road infrastructure of the Heatherfields/Lot 108

area, is “consistent with the goals and objectives of the Comprehensive Plan for the

[Southeast Quadrant] district” will be determined when the Court considers the merits

of the application. Further, as discussed in the Summary Judgment Decision, “[i]f any


10  In any event, by statute and rule, Applicants’ appeal in this Court is de novo.
V.R.E.C.P. 5(g); 10 V.S.A. § 8504(h). The Court does not review the DRB decision and
does not affirm (or reverse) any of its conclusions. Rather, the Court applies “the
substantive standards that were applicable before the tribunal appealed from” and
reaches an independent decision on the merits of those aspects of the master plan
application raised by the Statement of Questions. 10 V.S.A. § 8504(h); V.R.E.C.P. 5(g). In
a de novo appeal such as this one, the Court “hear[s] the evidence anew ‘as if it had not
been heard before and as if no decision had been previously rendered.’” In re Godnick
Family Trust Permit & Variance Application, No. 52-4-09 Vtec, slip op. at 5 (Vt. Envtl.
Ct. Jan. 6, 2010) (Durkin, J.) (quoting State v. Madison, 163 Vt. 360, 370 (1995)).
                                           11
other elements of the goals and objectives of the Comprehensive Plan for the Southeast

Quadrant are sought to be applied by the City to the merits of any of the four contested

development areas, the constitutional vagueness analysis [of § 15.18(A)(10)] will have to

be addressed, as applied, at that time. Summary Judgment Decision at 30.

      Therefore, Applicants’ motion to reconsider is denied as to § 15.18(A)(10).



Section 15.18(B)(2) of the 2003 Regulations

      Section 15.18(B)(2) of the 2003 Regulations requires that:

      Building lots, streets and other structures shall be located in a manner that
      maximizes the protection of open character, natural areas, and scenic
      views of the Quadrant identified in the Comprehensive Plan, while
      allowing carefully planned development at the overall base densities
      provided in these Regulations.
      As the Court stated in the Summary Judgment Decision at 25, in order for

§ 15.18(B)(2) to survive constitutional scrutiny, it must provide sufficient standards for

the Court to apply to determine what open character, natural areas, or scenic views of

the Southeast Quadrant are identified in the Comprehensive Plan. It also must provide

sufficient standards to allow the Court to determine whether the lot layout, that is, the

location of building lots, streets, and other structures, “maximizes the protection” of

those listed features.”   However, to avoid reaching an unnecessary constitutional

question, the Court declined to rule on summary judgment as to the constitutionality of

§ 15.18(B)(2), until or unless the protection of “open character,” “natural areas” or

“scenic views” would actually be argued to be applicable to the merits of any of the

four contested development areas. Id. at 25–26.

      In the present motion, Applicants reiterate their argument that § 15.18(B)(2)

should be struck down as unconstitutionally vague on its face. Applicants continue to

disagree that the term “maximize” can ever be sufficiently definite to establish a

required degree of protection.”

                                              12
       The Court has fully considered this argument and declines to alter its decision to

refrain from ruling on the constitutionality of § 15.18(B)(2) on its face, because neither

party appears to claim that § 15.18(B)(2) is applicable to the merits of any of the four

contested development areas. Unless and until the features listed in § 15.18(B)(2)—as to

the “open character,” “natural areas” or “scenic views” of one of the contested

development areas—are applicable to the Court’s consideration of the master plan

application as to the four contested development areas, the Court declines to rule on the

constitutionality of that provision. See note 9, above. Accordingly, Applicants’ motion

to reconsider is denied as to § 15.18(B)(2).



Sections 15.18(A)(6) & 15.18(B)(4) of the 2003 Regulations

       Section 15.18(A)(6) of the 2003 Regulations requires that:

       Open space areas on the site have been located in such a way as to
       maximize opportunities for creating contiguous open spaces between
       adjoining parcels and/or stream buffer areas.

       Section 15.18(B)(4) of the 2003 Regulations requires that:

       Consistent with [§ 15.18(B)(1) through (3)], dedicated open spaces shall be
       designed and located to maximize the potential for combination with
       other open spaces on adjacent properties.

       In the Summary Judgment Decision, the Court characterized both of these

sections as “focus[ing] on preserving the potential for creating contiguity of open space

on the project property with open space on adjacent property,” and distinguished them

from the quite different issue of “convenient allocation and distribution of common

open space” struck down in Appeal of JAM Golf, LLC, No. 69-3-02 Vtec, slip op. at 5-6

(Vt. Envtl. Ct. June 12, 2009). Summary Judgment Decision at 19.

       The Court has reviewed the parties’ arguments and the reasoning of the

Summary Judgment Decision, and declines to change the Summary Judgment Decision

as to §§ 15.18(A)(6) and (B)(4) of the 2003 Regulations. The Court is able to determine
                                               13
from the plain language of these sections that the resource to be protected is the

potential or opportunity for making any open space on the project property continuous

with open space, including stream buffers, existing on adjacent property. The Court is

also able to determine from the plain language of these sections that the degree of

protection is to “maximize” that potential, that is, to ensure to the greatest extent

possible that development and open space on the site are located so as to avoid blocking

the future opportunity to link such open space with open space existing on adjacent

property.

       The Court therefore declines to alter its conclusion that §§ 15.18(A)(6) and (B)(4)

are sufficiently definite to be applied by the Court to the contested development areas.




       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Applicants’ Motion for Reconsideration or to Alter or Amend is Granted as to

§ 15.18(A)(4) with respect to “wildlife corridors,” as discussed above, and is otherwise

denied. A telephone conference has been scheduled (see enclosed notice) to discuss the

issues that remain in this appeal after the resolution of the motions, to discuss whether

mediation of any of those issues might now be appropriate, and to discuss the

scheduling of this matter for trial.



       Done at Berlin, Vermont, this 21st day of September, 2010.




                     _________________________________________________
                           Merideth Wright
                           Environmental Judge

                                           14
