In re Atwood Planned Unit Development (Kevin Trout, Dorothy Wilson, Graham McAfee, Linda McAfee, Steven Wyatt, Donna Wyatt, Jeff Marshall, Jack Manning, Suba Luck, Brian Stevens and Catherine Stevens, Appellants)
167 A.3d 312
| Vt. | 2017Background
- Atwood Enterprises applied for approval of a six-unit (three duplex) planned unit development (PUD) on a ~28.5-acre portion of a larger parcel in Jericho; the Town’s 2013 Land Use and Development Regulations governed review.
- Atwood posted a municipal hearing notice on a tree on Raceway Road (not the public road most nearly adjacent, Meadow Drive); the Town also published notice in a newspaper, posted in two other public places, and mailed notices to abutters. Neighbors participated in the DRB hearing.
- The DRB approved the PUD on October 27, 2014; neighbors appealed to the Environmental Division.
- Neighbors’ original Statement of Questions was very broad; the Environmental Division ordered an amended statement under V.R.E.C.P. 5(f). Neighbors filed an Amended Statement of Questions that broadly challenged compliance with regulations applicable to PUDs, including whether other regulatory reviews (subdivision, conditional use, site plan, general provisions) were met.
- The court proceeded to trial on the amended questions; parties presented evidence on a wide range of regulatory issues. The Environmental Division limited its decision to (1) notice/posting, (2) PUD-specific regulations, and (3) Town Plan compliance, and affirmed the DRB.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by requiring an amended Statement of Questions under V.R.E.C.P. 5(f) | Neighbors: the court impermissibly limited their appeal rights by forcing a narrowed statement | Atwood/Town: Rule 5(f) authorizes the court to require specificity to give notice and narrow issues | Court: affirmed — trial court properly ordered an amended statement to provide notice and manage proceedings |
| Whether the Environmental Division was required to decide all issues raised in the Amended Statement of Questions after proceeding to trial | Neighbors: once trial occurred on the amended statement, the court had to resolve all raised and litigated issues (including subdivision, conditional-use, site-plan, general provisions) | Atwood: the court could limit decision to PUD-specific regulations to avoid overly broad/ambiguous review | Court: reversed in part — once trial proceeded on the Amended Statement, the court must resolve all issues raised and litigated; remand to address unresolved regulatory matters |
| Whether the Amended Statement’s inclusion of PUD standards implicitly included related reviews (subdivision, conditional-use, site-plan, general provisions) | Neighbors: PUD regulations expressly require compliance with those other standards, so they were properly included | Atwood: those cross-references were too broad/ambiguous to provide notice; court properly limited scope | Court: held the PUD question necessarily implicates those other standards and they should have been addressed because they were litigated |
| Whether posting the hearing notice on Raceway Road satisfied 24 V.S.A. § 4464(a)(1) | Neighbors: posting must be on the public right-of-way most nearly adjacent (Meadow Drive); posting on Raceway Road was deficient | Atwood: posting was adequate in practice; newspaper publication and mailed notices to abutters satisfied notice; any defect was harmless | Court: affirmed — even if posting was defective, Atwood made reasonable efforts and no prejudice occurred, so the defect did not invalidate the proceeding |
Key Cases Cited
- In re Gulli, 174 Vt. 580, 816 A.2d 485 (2002) (appeal confined to issues in filed Statement of Questions)
- In re Milton Arrowhead Mountain, 169 Vt. 531, 726 A.2d 54 (1999) (appeal rights construed liberally in favor of appellants)
- In re Verizon Wireless Barton Permit, 188 Vt. 262, 6 A.3d 713 (2010) (specificity in amended statement required to support claims such as party status)
- In re Jolley Assocs., 181 Vt. 190, 915 A.2d 282 (2006) (matters intrinsic to a stated question may be considered even if not literally stated)
- In re Garen, 174 Vt. 151, 807 A.2d 448 (2002) (appeal confined to issues raised in Statement of Questions)
- In re White, 172 Vt. 335, 779 A.2d 1264 (2001) (original forum should have opportunity to rule on issues before appellate review)
- In re Lunde, 166 Vt. 167, 688 A.2d 1312 (1997) (avoid construing procedural provisions as surplusage)
- In re Hignite, 176 Vt. 562, 844 A.2d 735 (2003) (statement of questions construed liberally in favor of appellant)