In re B&M Realty, LLC
158 A.3d 754
| Vt. | 2016Background
- B&M Realty proposed a large mixed‑use business park (≈115,000 sq ft commercial in Phase 1 plus residences) at I‑89 Exit 1 in Hartford; the project would add new roadwork and a traffic signal.
- Applicant sought zoning changes and presented sketches in 2005–2006, applied for local zoning permits in 2012, and filed for an Act 250 permit in December 2012.
- The Two Rivers‑Ottauquechee (TRO) Regional Commission adopted a 2007 Regional Plan (replacing the 2003 Plan) that addresses Hartford and: (a) requires principal retail to be in town/downtown/growth centers, (b) directs "major growth" to regional growth areas, and (c) restricts major retail/growth‑center development at Exit 1.
- The District Environmental Commission denied the Act 250 application for nonconformance with the 2007 Regional Plan; the Environmental Division reversed, concluding the 2007 Plan applied but the project conformed.
- The Vermont Supreme Court reviewed de novo whether the 2007 Regional Plan applied and whether the project conformed to the Plan; it held the 2007 Plan applied and that the project does not conform, and reversed the Environmental Division.
Issues
| Issue | Plaintiff's Argument (TRO/NRB) | Defendant's Argument (B&M) | Held |
|---|---|---|---|
| Whether the 2007 TRO Regional Plan applies (vesting) | 2012 zoning/Act 250 applications post‑2007 control; 2007 Plan applies | Applicant argued rights vested in 2005–2006 when zoning amendment/sketch plan occurred, so 2003 Plan should apply | 2007 Plan applies; vesting requires a complete permit application (no vesting from mere zoning amendment or sketch) |
| Whether the TRO definition of “substantial regional impact” is an unlawful delegation and whether this project has substantial regional impact | TRO/NRB: statutory framework guides commissions; definition entitled to due consideration and is reasonable; project meets criteria | B&M: Legislature unlawfully delegated power; hypothetical edge cases show arbitrariness; court must independently assess and avoid speculation | No unlawful delegation; court may independently decide but give due consideration to regional definition; this project (115,000 sq ft + highway improvements) has substantial regional impact |
| Whether the project is barred as a "principal retail establishment" outside designated centers | TRO/NRB: retail must be in town centers/downtown/growth centers; mixed‑use project still contains principal retail uses prohibited at Exit 1 | B&M: mixed‑use project as a whole is not a single "principal retail establishment" because retail is not the largest square footage | Court: "principal retail establishment" is an establishment where retail is a primary use; the project contains principal retail establishments (restaurant + ≈35,000 sq ft retail) and thus violates the mandatory regional restriction |
| Whether the project violates regional mandates to channel "major growth" into growth centers and to limit interchange development to traveler‑oriented, low‑regional‑draw uses | TRO/NRB: the project constitutes "major development" and Exit 1 is not an appropriate growth center; interchange policy forbids regional‑draw retail/major development at Exit 1 | B&M: terms like "major growth" and "planned settlement area" are vague/aspirational and thus unenforceable; no one seeks a formal growth‑center designation for the site | Court: plan language is mandatory and sufficiently clear in context; this is major development not appropriate at Exit 1 and not oriented to traveling‑public uses; project fails Criterion 10 |
Key Cases Cited
- Smith v. Winhall Planning Comm’n, 140 Vt. 178 (Vt. 1981) (vested rights accrue as of time a proper permit application is filed)
- Richart v. Jackson, 171 Vt. 94 (Vt. 2000) (standard for reviewing summary judgment rulings)
- In re Taft Corners Associates, 171 Vt. 135 (Vt. 2000) (subdivision permit does not broadly vest rights to future separate zoning permits)
- In re Molgano, 163 Vt. 25 (Vt. 1994) (conformance under Act 250 measured with regard to zoning law in effect at time of proper zoning permit application)
- Brody v. Barasch, 155 Vt. 103 (Vt. 1990) (plan or ordinance language must be sufficiently clear to give a person of ordinary intelligence notice of what is proscribed)