Justia Zoning, Planning & Land Use Opinion Summaries

In May 2008, the Town of Granville established an Ancient Roads Committee and Process for identifying “ancient roads,” all roads that were at one time established as public highways and had not been officially discontinued. In August 2009, the Committee recommended that certain roads, including Sabin Homestead Road, be added to the Town Highway Map. Sabin Homestead Road crosses defendant Joseph Loprete’s land for about 100 feet. In December 2009, after notice to defendant and several public hearings, the selectboard adopted the Committee’s revised recommendation to add Sabin Homestead Road back to the Town Highway Map. The road appeared on the Vermont Agency of Transportation’s official Town Highway Map. In late 2012, defendant blocked Sabin Homestead Road by putting a large storage container in the right-of-way. He refused to move the container, even after the selectboard asked him to do so. Plaintiffs then filed a declaratory judgment action asking the court to declare Sabin Homestead Road an existing town highway and public road that was properly established in 1850 following the statutory procedures required at that time. The Town moved for summary judgment, arguing that the undisputed facts established that in 1850 the selectboard took official action to lay out the road and that they created and recorded a survey. The trial court denied summary judgment based on the Town’s failure to demonstrate that it met the third requirement: that in connection with the creation of the road, the town had filed a certificate of opening. The parties subsequently agreed that the court could decide this question based on undisputed facts and they filed cross-motions for summary judgment. The parties agreed that no certificate of opening could be found. Defendant argued that this disposed of the case. However, the court concluded that the Town’s circumstantial evidence, along with the explanations provided by the Town’s affiants for the inability to locate an actual certificate of opening in the town records, supported a finding that a certificate of opening was in fact created and recorded, but had since been lost or destroyed. It thus determined that the road had been properly created and granted summary judgment to the Town. Defendant argued on appeal to the Vermont Supreme Court that the Town was required, and failed, to produce sufficient evidence that the Town certified the road as open for public travel in 1850. After review, the Supreme Court concluded the Town met its burden of proof, and it was entitled to summary judgment in its favor. View "Town of Granville v. Loprete" on Justia Law

At issue before the Vermont Supreme Court in this appeal was whether land dedicated to a public use could be condemned for another public use when the new use did not materially interfere with the prior use. Intervenors, a group of Hinesburg residents who use Geprags Park, appealed the Public Service Board’s order authorizing Vermont Gas Systems, Inc. (VGS) to condemn an easement through the park for the purpose of installing a natural gas pipeline. They argued the Board erred in authorizing the condemnation in light of the fact that the park was already dedicated to a public use, and in concluding that the condemnation was necessary under 30 V.S.A. section 110(a)(2). The Supreme Court affirmed the Board’s decision, but remanded for a minor correction to the order relating to the terms of the easement. View "In re Vermont Gas Systems, Inc." on Justia Law

This appeal involved a dispute between two neighbors over the construction of a pergola on the shore of Lake Champlain in Swanton. The Environmental Division consolidated three related proceedings concerning this dispute and concluded that the Town of Swanton was equitably estopped from enforcing its zoning regulations and that the pergola, which did not comply with those regulations, could remain. Finding no reversible error, the Vermont Supreme Court affirmed. View "In re Langlois/Novicki Variance Denial" on Justia Law

Neighbors were a group of property owners in the neighborhood of PATH at Stone Summit, Inc.’s proposed therapeutic community residence in Danby. They appealed the Green Mountain Care Board’s decision that the proposed project could proceed without a certificate of need under 18 V.S.A. 9434(a)(5). The Vermont Supreme Court concluded the appeal is not properly before it because Neighbors failed to timely file a petition to become interested parties. Accordingly, the Court dismissed Neighbors’ appeal. View "In re PATH at Stone Summit, Inc." on Justia Law

This appeal tested the limits of a town’s authority to enforce a noise ordinance against a sport shooting range’s historically established operations. Plaintiff North Country Sportsman’s Club received multiple citations from defendant Town of Williston for allegedly violating the Town’s noise ordinance. The Club sought a declaration that under state law and the Town ordinance that the Town lacked authority to enforce the ordinance against the Club for a use consistent with its historical usage. After review, the Vermont Supreme Court agreed with the Club and reversed in part and affirmed in part, holding that the as long as the Club’s operations were consistent with its historical operation of the range, the Town could not cite the Club for violating the Town’s noise ordinance. The Town could attempt to apply its noise ordinance to shooting at the range that exceeds the Club’s historical use unless the activity was exempt pursuant to an agreement voluntarily executed between the Town and Club as to its hours of operation. View "North Country Sportsman's Club v. Town of Williston" on Justia Law

A group of landowners (neighbors) adjacent to a proposed planned unit development (PUD) challenged the Environmental Division’s affirmance of the PUD permit. On appeal, neighbors argued that the Environmental Division improperly required them to amend their original statement of questions and then erred by refusing to consider all of the issues raised by neighbors’ Amended Statement of Questions. Neighbors also claimed that the court erred as a matter of law when it concluded that adequate notice was posted of the public hearing on the PUD permit. After review, the Supreme Court affirmed in part and reversed and remanded in part. The court did not err when it required neighbors to file an amended statement of questions under Environmental Proceedings Rule 5(f). The Supreme Court did concluded, however, that, after requiring neighbors to file a new statement of questions, the court was obligated to resolve all of the issues raised by the Amended Statement of Questions. “The court limited its decision on the merits to those issues specifically relating to PUD regulations. This was error. By declining to specifically address these regulations, the court left open issues presented by the Amended Statement of Questions.” Because the parties presented evidence on the regulations and the regulations were before the court, the Environmental Division should have addressed them in its decision. The Supreme Court concluded the Environmental Division did not err when it determined that Atwood satisfied the notice requirements to obtain approval of the project. View "In re Atwood Planned Unit Development" on Justia Law

Appellants Natural Resources Board and Applicant Two Rivers-Ottauquechee (TRO) Regional Commission appealed the Environmental Division’s award of an Act 250 permit to Applicant B&M Realty, LLC, to construct a large mixed-use business park near the Interstate 89 Exit 1 interchange in the Town of Hartford. The trial court concluded that the project satisfied Act 250, including the requirement that it conform with the 2007 TRO Regional Plan. The Natural Resources Board and the TRO Regional Commission argued on appeal that the project was inconsistent with mandatory and unambiguous provisions in the regional plan. Applicant cross-appealed, arguing that the 2007 Regional Plan did not apply, and that the Supreme Court need not consider the plan because the proposed development will not have substantial regional impact. The Supreme Court concluded that the 2007 Regional Plan applied and that the trial court’s conclusion that the project will have substantial regional impact is supported by the evidence, but held that the project was inconsistent with several provisions in the regional plan. The Court accordingly reversed. View "In re B&M Realty, LLC" on Justia Law

The LaBerges appealed the Environmental Division’s affirmance of a Notice of Violation (NOV) issued by the Town of Hinesburg Zoning Administrator (ZA) for violation of a Town noise ordinance arising from use of a motocross track on their property. On appeal, the LaBerges argued the ordinance was unconstitutionally vague and that the Environmental Division’s conclusion that the LaBerges violated the ordinance is clearly erroneous. Finding no such error, the Supreme Court affirmed. View "In re LaBerge NOV" on Justia Law

Neighbor Mary Bourassa appealed the Environmental Division’s affirmance of a zoning permit application by Philip and Barbara Wagner and Christopher Guay, who wanted to build a single family residence and detached garage on two merged lots of a six-lot subdivision in Grand Isle. Bourassa, an owner of another lot in the subdivision, opposed development, chiefly on the ground that the proposed house would not be constructed within the “tree line” on the property, as required by the subdivision plat plan. Finding no reversible error, the Supreme Court affirmed. View "In re Wagner & Guay Permit" on Justia Law

This case came before the Vermont Supreme Court following the Environmental Division's decision on remand that a rock-crushing operation by North East Materials Group, LLC, (NEMG) was exempt from Act 250 as a preexisting development. The Environmental Division reached the same conclusion in its first decision, but the Supreme Court reversed and remanded, holding that the court used the wrong legal standard in deciding that the rock-crushing operation did not constitute a cognizable physical change to the preexisting development and that one of the main factual findings in support of the decision was clearly erroneous. Appellants, a group on thirteen neighbors to the operation, appealed, arguing that the Environmental Division erred in applying the Supreme Court's instructions on remand. After review a second time, the Supreme Court concluded that, even assuming that crushing operations were part of the preexisting quarrying development, findings on the location and volume of the crushing operations were too limited to support a conclusion that the present operations did not constitute a cognizable change to the existing development. Accordingly, the Court reversed and remanded for further proceedings. View "In re North East Materials Group LLC Act 250 JO #5-21" on Justia Law