SCOV Law Blog: The development next door

Editor’s note: This analysis of a recent Vermont Supreme Court ruling is by Daniel Richardson, the founder of SCOV Law Blog.

In re Woodstock Community Trust and Housing Vermont PRD, 2012 VT 87.

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There ought to be a name for this kind of case because its type is a common event in land use law. Calling it BANANA-NIMBY — Build Absolutely Nothing Anywhere Near Anything, and most certainly Not In My Back Yard — as one contributor has suggested may capture some of the feeling, but it does a disservice to both sides and to the totally committed nature of the litigation. Appeals of this ilk are not simply protective actions by a neighbor trying to protect her view or a favored open field. It is a primal scream that expresses outrage across the spectrum. It says that this project not only offends me, it offends the town, our community, the land use laws of this state, the zoning practices of the past 50 years, private property boundaries, and the common decency we expect in Vermont.

In short, an appeal like this one is absoluter krieg. Neighbors opposing the development at the heart of today’s appeal have filed multiple lawsuits, attended countless zoning meetings, have retained a cadre of expert witnesses, and have likely spent more hours trying to stop this project than you can imagine. In this respect, NIMBY or like terms are not accurate. These neighbors have looked at the proposed development and have come to believe that something foul lies at its heart, and they have pledged time and fortune to see that it does not come to pass.

That is an amazing feature of land use law. People will spend tens of thousands of dollars for the status quo — not to gain anything, just simply not to lose what exist.

In this respect today’s case cannot accurately capture the details and nuance of such a proposal or its alleged flaws that have driven the neighbors. Such nuances would likely be apparent only to the individuals involved or to someone with time enough to read the decisions and transcripts of the multiple civil lawsuits and environmental court appeals that these parties have taken.

For now, let us, like the developer, be satisfied with a limited palette of facts and the legal issues immediately at hand.

Applicant sought zoning and Act 250 approval for a multi-unit project in West Woodstock. Neighbors opposed them. The Woodstock Design Review Board (DRB) first granted applicants zoning approval in 2007. Neighbors appealed, and the environmental division of the trial court reversed the DRB and denied the permit on four grounds.

Undeterred, Applicant made changes to its application and resubmitted to the DRB for zoning approval and to the District 3 Commission for Act 250 approval. Both bodies approved the application, and neighbors appealed to the trial court, which affirmed the permits.

This led to the present appeal on five various issues. The decision takes them one at a time starting with the zoning permit.

The first issue for the neighbors is the successive-application doctrine. Because applicant had previously applied and was denied a permit, it must now show a substantial change in conditions justifying the second application. Substantial change can come in three forms: Facts on the ground have changed (think post-Irene alterations to the landscape); the application has changed; or the law has changed.

This is an important difference between land-use litigation and other forms of litigation. When you lose your personal injury case that is it. You cannot wake up three months after the trial with a new argument and seek to reopen your claim. It is done and over. Short of finding new evidence (and not simply evidence you didn’t find the first time), you can never revisit issues that have already been litigated. This is what is known as res judicata.

In zoning and land use, though, the idea is to allow owners to re-apply as plans and conditions change. After all, zoning is not intended to block the use of land but simply direct it toward acceptable and harmonious uses that correspond to the community and its growth goals. Such goals change over time as does the technology in development and the scope of plans from the developer. In this sense, the successive-application doctrine exists only to block forum or panel shopping and prevent a landowner from reapplying for the same permit, time and time again.

Neighbor’s primary argument against applicant in this area attempts to tighten the successive-applicant doctrine by adding the provision that an applicant cannot re-apply for a permit with corrective information that he or she could have supplied in the first application. In this case, part of the reason applicant was rejected the first time was because its stormwater plan was incomplete. Neighbors argue that it could have been complete, and therefore, the applicant is barred from re-applying.

The SCOV rejects this argument. It notes that this is what separates the successive-application doctrine from res judicata. If an application is rejected for being incomplete or vague, or for creating specific problems, the doctrine allows the applicant to alter, add and fix the application and to immediately re-apply. The SCOV notes that in doing so, the applicant is being responsive to the decisions and direction of the land use boards and should be allowed to implement the altered application. Anything more would be a limitation without a purpose.

This leads to the neighbors’ next argument in this category: Applicant did not change its application enough to constitute a substantial change from the prior application. On this point, the neighbors noted that the applicant’s architect described the zoning changes as “subtle,” which the neighbors believe is a synonym for minor and insubstantial.

Not so, rules the SCOV. You must look at the application, and in this case, the applicant may have made “subtle” changes, but they were critical changes that altered the application substantially. In the case of each basis that the trial court cited during the first appeal for denying the application, the applicant made changes to remove or address the sources of the trial court’s earlier concerns. As a result, the SCOV rules, the application, by its terms, represented substantial change sufficient to trigger review and approval under the successive-application doctrine.

The second set of arguments deals with the deficiencies of the first application and the applicant’s attempt to cure them in the successive application.

The neighbors object to the applicant’s changes to the parking. To avoid a wet area, the applicant moved the proposed parking from a single lot to a series of tandem driveways. Neighbors argue that because the driveways are tandem (intended for two cars), they must be considered parking lots under the zoning bylaws and are improperly undersized. The SCOV disagrees. In doing so, the SCOV looks to the specific language of the town’s bylaws and just does not see the same thing that neighbors do within the definitions.

So the decision moves to the next line of argument which concerns the ownership and maintenance agreement for the common areas of the development. This would seem like a fertile area as applicant’s previous gaps were sufficient to tank the project in the last round. But this time, the applicant has met the standard. It is important to note the difference here, which neighbors seem to push too far.

First the neighbors seek a narrow interpretation of the zoning bylaw that would reject the application based on the nature of the ownership that applicant proposes for the individual units and common area. The SCOV rejects this reading as too narrow and unsupported by the regulation as a whole which is only intended to require that applicants with common area projects provide some proof of how the areas are to be owned, controlled and maintained.

Second, the neighbors argue that the project violates the Vermont Common Interest Ownership Act. This argument was raised for the first time on appeal. So the SCOV considers it waived. Nevertheless, the SCOV goes on to explain why it does not apply.

Zoning has almost nothing to do with the Common Interest Ownership Act. Zoning is not premised on compliance with the act, and the town’s bylaws do not require it. But the larger problem is described in detail in footnote six. The act is essentially a private set of rights that are limited to developers, buyers and homeowner associations. It is neither relevant nor proper for neighbors to raise these issues or to seek public repudiation based on them.

From the tone of the SCOV’s opinion and from footnote six, it would appear that this line of arguments may have hurt the neighbors’ credibility by showing them to be total opponents to the project rather than reasoned objectors who were seeking to raise legitimate concerns.

Moving to the next argument, the neighbors object to the stormwater plans arguing that they still violate the town’s regulations. This objection, though, does not bear out in the analysis. Between applications, the applicants sought and obtained a stormwater permit from the state for the site based on well-documented changes to the development plans. The presumption that attaches to these permits was not rebutted by the neighbors at the various hearings, and the SCOV affirms the trial court’s reliance on these permits.

The SCOV also rejects another line of arguments from the neighbors seeking to impose a zero-discharge increase standard from the zoning bylaws. As the SCOV notes, there is no such standard in the bylaws and if one was imposed, it would look not to the specific discharge point but the overall flow of surface water from the site. Without scientific evidence to the contrary, the neighbors’ position erodes.

The neighbors final zoning argument concerns the town’s harmony and density requirement. Basically, the neighbors’ argument is that the project will bring in too many people and will not fit in the character of the environment.

This leads the SCOV to quote the trial court’s lyrical description of the project at length. It is not precisely Wordsworth, but it does soar with a certain picturesque quality that stands in contrast to a great deal of legal writing.

More importantly, this is enough to establish that the project violates neither density nor harmony requirements and the neighbors’ position is tossed aside on poetic grounds.

Hang in there. We are not quite done. The SCOV takes up the neighbors’ third appellate issue, the objections to the applicant’s Act 250 permit. The neighbors’ sole basis of appeal in this category goes to Criterion 8, which is aesthetics.

This means the SCOV has to pull out the “Quechee Test.” This test says that a project creates an improper aesthetic impact if: 1) it creates a negative aesthetic impact, and 2) it is undue because it: (a) violates a clear, written community standard intended to preserve the aesthetics or scenic, natural beauty of the area; or (b) offends the sensibilities of the average person; and (c) lacks generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.

As you might imagine, Criterion 8 is oft raised in Act 250 proceedings but rarely established. Neighbors apparently attacked this with some gusto leading to another footnote from the SCOV noting dryly that the neighbors attempts to characterize the project as “Disney-like” and “offensive” to the established homeowners was “greatly exaggerated.” Pounding the point home, the SCOV notes that this “and other similar mischaracterizations” did “not help neighbors’ cause.”

Basically, there are only three solid ways to win an aesthetic argument. First, you must have a clear (and I mean clear) community standard to cite. Think of opposing a skyscraper in a town with a three-story height ban. Second, you are opposing something that is completely and unquestionably ugly. The problem here is that you as neighbor are probably the worst judge of this. Find an architect, a planner or a similar expert who can use their professional training to explain why the proposed strip mall on the far side of the Norwich town green is an aesthetic offense. Third, you have an expert who can show the project is at least somewhat offensive and out-of-character for the neighborhood and it could be accomplished in a much less offensive manner.

Here neighbors, because of circumstances, were limited to citing certain, general passages from the town plan and trying to express their strongly held disgust at the project. Neither is clear or strong enough to meet the Quechee Test, and the Act 250 permit is affirmed.

The neighbors’ fourth appellate argument concerns the trial court’s refusal to grant them a stay in this proceeding until the other ancillary actions could be resolved. The neighbors argument is that the tangle of facts and cross-rights interfered with each other and the trial court’s failure to grant a stay interfered with at least one neighbor’s water rights as established in a separate proceeding.

This is the dilemma for the courts with total war litigation. Neighbors want proceedings stayed so that the cases will progress one at a time, which will allow the issues to unpeel slowly. That is because the longer the process takes, the greater the chance the applicant will walk away. Of course, the argument, which has some merit, is that too many cases at once will overtax the parties’ resources; needlessly involve multiple issue litigation; and lead to decisions that may be conflicting. On the other hand, applicants want the process to go as cheap and fast as possible. They know that the longer the proceedings go, the worse it will be. They also know that they have the advantage at the outset. They have the experts and plans, and they have taken the time to think the project through. The neighbors usually are struggling to organize, hire experts, and come to grips with the fact that this opposition is going to cost a lot of money. With a couple of quick decisions awarding her permit rights, the applicant knows that the neighbors will likely lose some wind in their sails.

In light of these competing merits and strategic interests, the SCOV notes that the discretion for a stay resides by and large with the trial court. Here there is no basis to question the trial court’s denial. No great injustice, and so the SCOV affirms.

The fifth and final appellate argument concerns the neighbors objections to the trial court’s requirement for the applicant to note the location of a contested spring on its project maps along with notations about its ultimate legal status. The neighbors contend that this is an improper allocation of private rights. The SCOV is less sanguine. This is just a labeling condition. It is not intended to adjudicate private rights. It seeks to simply memorialize them and record them into the record. The trial court was well within its power to require such notation, and the decision is affirmed.

That does it. The permits are affirmed, and the neighbors lose on all counts. Sometimes total war comes to total defeat. Ask Napoleon on way west. For the applicants, though, this is only one negative decision. It sounds as if there are still miles to litigate before this thing is shovel ready.