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HomeMy WebLinkAboutAgenda 07B_SD-19-27_1505 Dorset St_Dorset Meadows_PubComment 275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM January 6, 2020 VIA ELECTRONIC MAIL Mr. Matt Cota, Chair South Burlington Development Review Board City of South Burlington 575 Dorset Street South Burlington, VT 05403 Email: mcota@sburl.com Re: 1505 Dorset Street, Final Plat Application No. SD-19-27 Dear Chairperson Cota and members of the South Burlington DRB: I serve as counsel for Robert Brinckerhoff and Louise Hammond, 15 Shea Drive; Andrew Chalnick, 670 Nowland Farm Road; Rosanne Greco and Higley Harmon, 63 Four Sisters Road; William and Kathy Hays, 51 Old Schoolhouse Road; Noah Hyman, 1575 Dorset Street; Claudia J. Miller, 48 Old Schoolhouse Road; Steven and Dunia Partilo, 64 Shea Drive; and Darrilyn Peters, 37 Old Schoolhouse Road, all of whom are South Burlington residents as well as persons interested in the above-referenced Final Plat Application (collectively, “Save Open Spaces South Burlington” or “SOS South Burlington”). This letter and Exhibits 1, 2 and 3 hereto concern 1505 Dorset Street, Final Plat Application No. SD-19-27 (the “Final Plat Application”). I am writing to bring to the DRB’s attention an important new E-Court decision that has a direct impact on the Final Plat Application. In Section I of my October 10, 2019 letter to the DRB (a copy of which is attached hereto as Exhibit 1), I explained that the Final Plat Application is moot and should be dismissed because it is dependent on 68 transferable development rights (“TDRs”) under the City’s former 2006 TDR Bylaw (“2006 TDR Bylaw”) to reach its proposed density of 154 dwelling units. The E-Court invalidated the 2006 TDR Bylaw in the February 28, 2019 Snyder Group I decision, which remains the controlling law while Snyder Group I is on appeal to the Vermont Supreme Court. See Snyder Group Inc. PUD Final Plat, Dkt. No. 114-8-17 Vtec, 2019 WL 1428677 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.), appeal docketed, No. 2019-122 (Vt. Apr. 5, 2019) (“Snyder Group I”). A copy of Snyder Group I is attached hereto as Exhibit 2.1 1 As detailed in Section II of my October 2019 letter (Exhibit 1 hereto), the developer and the DRB cannot apply the City’s new 2019 TDR Bylaw to the Final Plat Application. Vermont law is clear that a municipality may not apply to a submitted permit application a zoning ordinance adopted after the filing of the application. Rather, the zoning regulations in effect when an application was filed govern the application, not subsequently enacted amendments. See Exhibit 1 hereto, at pages 3-4 and the case law there cited. Letter to DRB Chairperson Matt Cota January 6, 2020 Page 2 of 3 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com On December 24, 2019, the E-Court handed down a new decision in the Snyder Group litigation concerning the developer’s Act 250 permit that confirms that the City’s 2006 TDR Bylaw is invalid and unconstitutional presently. In Snyder Group II, the E-Court held that: Generally, “a judgment of an adjudicative body remains valid until reversed or annulled.” In re Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203 (citing Davidson v. Davidson, 111 Vt. 24, 29 (1939). It therefore follows that this Court’s February 28, 2019 Decision [in Snyder Group I] presently has a preclusive effect. As such, the City of South Burlington’s TDR Bylaw is currently considered invalid and unconstitutional, subject to the pending Vermont Supreme Court determination. Snyder Group Inc. Act 250 Appeal, Dkt. No. 107-10-18 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. Dec. 24, 2019) (Durkin, J.) (bold emphasis added) (“Snyder Group II”). A copy of Snyder Group II is attached hereto as Exhibit 3. In Snyder Group II, the E-Court reconsidered and granted the Appellants/Neighbors’ Motion to Stay their appeal of an Act 250 permit for the proposed “Spear Meadows” development while Snyder Group I remains on appeal to the Vermont Supreme Court. The E- Court stayed the Snyder Group Act 250 litigation “in the interest of avoiding conflicting judgments, until the Supreme Court renders its determinations in the pending Municipal Appeal.” Snyder Group II, slip op. at 5. In the instant matter, the current controlling law announced in Snyder Group I and confirmed in Snyder Group II is that the City’s 2006 TDR Bylaw is invalid and unconstitutional. The “preclusive effect” of Snyder Group I means that the Dorset Meadows developer’s Final Plat Application, which is dependent on 68 TDRs under the 2006 TDR Bylaw, is moot and should be dismissed. Thank you for your attention to this important and time-sensitive matter. Respectfully submitted, /s/ Daniel A. Seff Daniel A. Seff Attachments (3) Letter to DRB Chairperson Matt Cota January 6, 2020 Page 3 of 3 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail w/Attachments) Ms. Dalila Hall, Zoning Administrative Officer (via e-mail w/Attachments) Ms. Marla Keene, Development Review Planner (via e-mail w/Attachments) Amanda S. E. Lafferty, Esq., Deputy City Attorney (via e-mail w/Attachments) Matthew B. Byrne, Esq. (via e-mail w/Attachments) Robert H. Rushford, Esq. (via e-mail w/Attachments) Save Open Spaces South Burlington (via e-mail w/Attachments) Exhibit 1 275 COLLEGE STREET, PO BOX 4485 | BURLINGTON, VT 05406-4485 | PHONE 802 861-7000 | FAX 861-7007 | MSKVT.COM October 10, 2019 VIA ELECTRONIC MAIL Mr. Matt Cota, Chair South Burlington Development Review Board City of South Burlington 575 Dorset Street South Burlington, VT 05403 Email: mcota@sburl.com Re: 1505 Dorset Street, Final Plat Application No. SD-19-27 Dear Chairperson Cota and members of the South Burlington DRB: I serve as counsel for Robert Brinckerhoff and Louise Hammond, 15 Shea Drive; Andrew Chalnick, 670 Nowland Farm Road; Rosanne Greco and Higley Harmon, 63 Four Sisters Road; William and Kathy Hays, 51 Old Schoolhouse Road; Noah Hyman, 1575 Dorset Street; Claudia J. Miller, 48 Old Schoolhouse Road; Steven and Dunia Partilo, 64 Shea Drive; and Darrilyn Peters, 37 Old Schoolhouse Road, all of whom are South Burlington residents as well as persons interested in the above-referenced Final Plat Application (collectively, “Save Open Spaces South Burlington” or “SOS South Burlington”). This letter and Attachments A to E hereto concern 1505 Dorset Street, Final Plat Application No. SD-19-27. As explained below in Section I, the Final Plat Application is moot and should be dismissed because it is dependent on 68 transferable development rights (“TDRs”) under the City’s former 2006 TDR Bylaw (“2006 TDR Bylaw”) to reach its proposed density of 154 dwelling units. The E-Court invalidated the 2006 TDR Bylaw in the February 28, 2019 Snyder Group decision, which remains the controlling law while Snyder Group is on appeal to the Vermont Supreme Court. Moreover, as explained below in Section II, the developer and the DRB cannot apply the City’s new 2019 TDR Bylaw (which the City Council approved on September 16, 2019) to the Final Plat Application. Vermont law is clear that a municipality may not apply to a submitted permit application a zoning ordinance adopted after the filing of the application. Rather, the zoning regulations in effect when an application was filed govern the application, not subsequently enacted amendments. Finally, as explained below in Section III, even if the 2006 TDR Bylaw still existed (which it does not), or even if the 2019 TDR Bylaw applied to the Final Plat Application (which it does not), the Final Plat Application is fatally flawed and must be rejected because the developer proposes to build in a Primary Conservation Area that is off-limits to development and Letter to DRB Chairperson Matt Cota October 10, 2019 Page 2 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com which the South Burlington Land Development Regulations (“SBLDR”) mandate “shall be protected through the development plan.” SBLDR § 9.06(B)(3). I. The Final Plat Application is Moot and Should Be Dismissed Because it is Dependent on 68 TDRs Under the City’s 2006 TDR Bylaw and that Bylaw was Invalidated on February 28, 2019 in the E-Court’s Controlling Snyder Group Decision. On February 28, 2019, the Vermont Superior Court’s Environmental Division handed down a controlling decision invalidating the City’s 2006 TDR Bylaw for failure to comply with the State enabling statute, 24 V.S.A. § 4423(a), and because the Bylaw is unconstitutionally void for vagueness on its face. See In re Snyder Group Inc. PUD Final Plat, Dkt. No. 114-8-17 Vtec, 2019 WL 1428677 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.), appeal docketed, No. 2019-122 (Vt. Apr. 5, 2019) (hereafter cited as “Snyder Group”). On April 5, 2019, the Snyder Group, Inc. appealed Snyder Group to the Vermont Supreme Court (the City did not appeal or cross-appeal). On September 17, 2019, the Vermont Supreme Court held oral argument in Snyder Group. The Vermont Supreme Court’s decision could come down at any time. In the meantime, the E-Court’s Snyder Group February 28, 2019 decision remains the controlling law. As such, the 2006 TDR Bylaw remains invalid, and neither the developer nor the DRB can rely on the former Bylaw to increase the base density of the proposed Dorset Meadows PUD. See generally In re Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203, 824 A.2d 579 (“In Vermont, a judgment of an adjudicative body remains valid until reversed or annulled”) (emphasis added), citing Davidson v. Davidson, 111 Vt. 24, 29, 9 A.2d 114, 116 (1939). In Davidson, the Court explained that “the judgment of a trial court in an action at law is not vacated by the allowance and filing of a bill of exceptions, but it still remains valid until reversed or annulled.” Id. at 29, 9 A.2d at 116. See also In re Hale Mountain Fish & Game Club, Nos. 149-8-04 Vtec & 259-12-05 Vtec, 2008 WL 7242611, slip op. at 11 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J.) (holding that “Vermont [trial court] judgments are final unless appellate review of that judgment involves a trial de novo” and noting that “[t]his approach is in accord with the federal approach to finality”) (citing cases).1 1 A “trial de novo” is not the same thing as review de novo. See Luck Bros. v. Agency of Transp., 2014 VT 59, ¶ 27, 196 Vt. 584, 99 A.3d 997 (citing cases); see also Stein’s, Inc. v. Blumenthal, 649 F.2d 463, 466 (7th Cir. 1980) (distinguishing between “trial de novo” and “de novo review”). Situations in which an “appeal” involves a “full trial de novo” are “virtually nonexistent.” 18A EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4433 (3d ed.) (emphasis added), Westlaw FPP § 4433 (database updated Aug. 2019). Letter to DRB Chairperson Matt Cota October 10, 2019 Page 3 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com The long-standing Vermont rule that court decisions remain valid until reversed or annulled is consistent with the rule in the federal courts that “the preclusive effects of a lower court judgment cannot be suspended simply by taking an appeal that remains undecided.” 18A EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 4433 (3d ed.) (emphasis added), Westlaw FPP § 4433 (database updated Aug. 2019). As the authors of a leading federal procedure treatise have explained: The bare act of taking an appeal is no more effective to defeat preclusion than a failure to appeal. The Supreme Court long ago seemed to establish the rule that a final judgment retains all of its res judicata consequences pending decision of the appeal, apart from the virtually nonexistent situation in which the “appeal” actually involves a full trial de novo. The lower courts have taken the rule as settled ever since. Id. § 4433 (emphasis added) (footnotes omitted) (citing extensive case law). See generally Coleman v. Tollefson, 135 S. Ct. 1759, 1764 (2015) (“a judgment’s preclusive effect is generally immediate, notwithstanding any appeal”); Palmer-Williams v. United States, 699 F. App’x 1, 3 (2d Cir. 2017) (“the law is well-settled that the preclusive effect of a judgment is immediate, notwithstanding a pending appeal”); and Burke v. Vermont Dep’t of Corr., No. 5:14-CV-00272, 2015 WL 1954268, at *3 n.3 (D. Vt. Apr. 29, 2015) (“Res judicata and collateral estoppel apply once a final judgment is entered in a case, even while an appeal from that judgment is pending.”) (internal quotes and brackets omitted). In the instant matter, the current controlling law announced in Snyder Group is that the City’s 2006 TDR Bylaw is invalid and unconstitutional. The practical effect of this is that the Dorset Meadows developer’s Final Plat Application, which is dependent on 68 TDRs under the 2006 TDR Bylaw, is moot and should be dismissed. II. The City’s New 2019 TDR Bylaw Does Not Apply to the Final Plat Application. In an apparent reaction to the E-Court’s February 28, 2019 Snyder Group decision invalidating the 2006 TDR Bylaw, the City Council adopted a new TDR bylaw on September 16, 2019 (“2019 TDR Bylaw”). The developer and the DRB cannot apply the new 2019 TDR Bylaw to the Final Plat Application. Vermont law is clear that a municipality may not apply to a submitted permit application a zoning ordinance adopted after the application is filed. See generally Gould v. Town of Monkton, 2016 VT 84, ¶ 28, 202 Vt. 535, 150 A.3d 1084 (“a permit application cannot prospectively vest a right in future regulations”); In re Times & Seasons, LLC, 2011 VT 76, ¶ 16, 190 Vt. 163, 27 A.3d 323 (to “take advantage” of a post-application “favorable change in the law,” an applicant must begin the “permit process anew”); In re Paynter Letter to DRB Chairperson Matt Cota October 10, 2019 Page 4 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com 2-Lot Subdivision, 2010 VT 28, ¶ 9, 187 Vt. 637, 996 A.2d 219 (mem.) (explaining that a town may not apply to a submitted permit application a zoning ordinance adopted after the filing of the application); and Smith v. Winhall Planning Comm’n, 140 Vt. 178, 181-82, 436 A.2d 760, 761- 62 (1981) (holding that zoning regulations in effect when application was filed govern application, not subsequently enacted amendments). In short, if the Dorset Meadows developer wishes to hitch its wagon to the 2019 TDR Bylaw, it must begin the “permit process anew,” i.e., file a new sketch plan application. Times & Seasons, 2011 VT 76, ¶ 16. III. Dorset Meadows Cannot Be Constructed in a Primary Conservation Area. SBLDR Section 9.06(B)(3) states that “existing natural resources shall be protected through the development plan, including (but not limited to) primary natural communities, streams, wetlands, floodplains, [and] conservation areas shown in the Comprehensive Plan. . . .” SBLDR § 9.06(B)(3) (emphasis added). The City’s Comprehensive Plan identifies “primary conservation areas” on Map 7 (Attachment A hereto), and the Comprehensive Plan states (at page 2-103) that “[p]rimary conservation areas (Map 7) include environmentally sensitive and hazardous areas that are off limits to development, regardless of their setting or context. . . .” (emphasis added). Much of the proposed “Dorset Meadows” development is located on a riparian connectivity area that the Comprehensive Plan designates as a Primary Conservation (Attachment B) and as off limits to development. For this reason alone, the Final Plat Application must be rejected. Former DRB member Frank Kochman voted against granting preliminary plat and master plan approval to Dorset Meadows for this very reason. See the DRB’s June 28, 2019 Findings of Fact and Decision approving the developer’s Preliminary Plat Application #SD-18-29A, at 25 n.3 (“Mr. Kochman would deny the application for failure of the development plan to protect the full applicable conservation area as shown on Map 7 of the Comprehensive Plan in violation of the applicable goal and objective of the Comprehensive Plan.”); and the DRB’s June 28, 2019 Findings of Fact and Decision approving Master Plan Application #MP-18-01A, at 12 n.4 (same). Moreover, a planned unit development (“PUD”) must be “consistent with the goals and objectives of the Comprehensive Plan for the affected district(s).” SBLDR § 15.18(A)(10). One of the Comprehensive Plan’s goals for the City, including the Southeast Quadrant (“SEQ”), is “conservation of identified important natural areas” (Comp. Plan, p. 1-1 (emphasis added)). And one of the objectives for the SEQ is prioritizing and conserving existing contiguous and interconnected open space areas (see Comp. Plan, p. 3-38, Objective 60). The Comprehensive Plan has identified important natural areas on Map 7. Development in these important natural Letter to DRB Chairperson Matt Cota October 10, 2019 Page 5 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com areas is inconsistent “with the goals and objectives of the Comprehensive Plan,” SBLDR § 15.18(A)(10), and as such the Final Plat Application must be rejected. It is no accident that the City designated these riparian connectivity areas as off-limits to development, as the State of Vermont has similarly designated these same areas as requiring the “highest priority” of protection. Attached hereto as Attachment C is a screen shot from the BioFinder tool produced by the Vermont Agency of Natural Resources (“ANR”). The image shows (in dark blue) the highest priority “surface water and riparian areas” that exist on the proposed Dorset Meadows development. Surface Waters and Riparian Areas include not only rivers, streams, lake, ponds and wetlands but also the floodplain and land surrounding these water bodies that are impacted by the waterways. See “ANR Fish & Wildlife Department, Mapping Vermont’s Natural Heritage: A Mapping and Conservation Guide for Municipal and Regional Planners in Vermont,” 2018, at 48, available at: https://vtfishandwildlife.com/sites/fishandwildlife/files/documents/Get%20Involved/Partner%20i n%20Conservation/MVNH-web.pdf (last visited Oct. 10, 2019) (hereafter, “ANR Guide”)  (“Surface Waters and Riparian Areas maps the entire area impacted by these waterways, including not only the water itself but also the surrounding land. This surrounding area is referred to as the riparian area.”).  The area that ANR designated as highest priority for protection is practically identical to the primary conservation area identified by the City. The ANR explains that the BioFinder maps “outline the areas of land that need to remain healthy and intact if we want to provide plants, animals, and natural resources the best chance of survival over time.” ANR Guide, supra, at 78. The ANR has instructed as follows: Maintaining a vegetated riparian area may be the single most effective way to protect a community’s natural heritage. The riparian area provides high quality habitat for a great diversity of both aquatic and terrestrial species. . . . Terrestrial animals use riparian areas as travel corridors, while many plant and tree seeds float downstream to disperse. Streamside vegetation helps to control flooding, and it is crucial in filtering overland runoff – which protects water quality – and stabilizing stream banks, which prevents excessive streambank erosion and sediment buildup. What’s more, maintaining the riparian area is one of the most cost- effective ways to provide resilience for a changing climate. ANR Guide, supra, at 49 (emphasis added). The ANR goes on to state: Letter to DRB Chairperson Matt Cota October 10, 2019 Page 6 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com Not sure where to begin conserving your community’s natural heritage? Consider starting with riparian habitat. Among conservation actions taken at the community level, maintaining riparian habitat has one of the greatest impacts for wildlife. It’s also an area of great benefit for a community, since conserving the riparian area not only protects wildlife habitat but also maintains water quality, reduces erosion, provides flood resilience, and can support recreational opportunities. Id. at 32 (emphasis added). Experts commissioned by the City specifically identified these same areas as areas that “should remain as unfragmented as possible.” In particular, in 2004 Arrowwood Environmental, LLC produced the “Wildlife and Natural Communities Assessment of the South East Quadrant, South Burlington Vermont” (the “Arrowwood Assessment”). The Arrowwood Assessment states: The Great Swamp, and the upland forest and shrubby fields that surround it, comprise a 400-500 acre cluster of contiguous and varied wildlife habitat. It is the anchor, the source habitat for the western SEQ, and must remain un-fragmented if the level of current wildlife array is to be maintained in the SEQ. Arrowhead Assessment § 7.1.1, at 13 (July 13, 2004), available at: http://www.southburlingtonvt.gov/document_center/committees%20boards/Arrowwood%20Ecol ogical%20Assessment%202004.doc (last visited Oct. 10, 2019). A map of the “Great Swamp appears in the June 2004 “Study of Breeding Birds in the Southeast Quadrant” by Wings Environmental, available at: http://southburlingtonvt.gov/2004%20SEQ%20Bird%20Habitat%20Evaluation.pdf, Figure 1 at page 4 (last visited Oct. 10, 2019). A copy of this map included herewith as Attachment D. The Arrowwood Assessment goes states that “adjacent open spaces, including the large fields west of Dorset Street, should remain as unfragmented as possible.” Arrowhead Assessment § 7.1.1(5), at 13. See Attachment D hereto and note that the area west of Dorset Street. This is the exact area on which the developer proposes to build 153 dwelling units. Observations of the area confirm the experts’ assessments. Abundant wildlife exists throughout the site. Residents have reported observing mink, great blue heron, green heron, bitterns, bobcat, fox, deer, coyotes, squirrels, owls and hawks. Beaver activity can be readily observed on the neighboring property just downstream of the proposed development. Letter to DRB Chairperson Matt Cota October 10, 2019 Page 7 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com In its June 28, 2019 Findings of Fact and Decisions approving the developer’s Preliminary Plat Application #SD-18-29A (at page 7) and Master Plan Application #MP-18-01A (at page 8), the DRB found that: (a) A letter provided by the applicant’s engineer field-delineates areas that the Comprehensive Plan designated as requiring protection; (b) This field delineation has been confirmed by State Agencies; and (c) Map 7 may not be relied on because it includes the following disclaimer: “Maps and GPS data (“material”) made available by the City of South Burlington are for reference purposes only. The City does not guarantee accuracy.” These findings are incorrect. First, there is nothing that requires that riparian areas be field-delineated and, even if there were, the developer never field-delineated the riparian areas. Rather, the developer field-delineated the wetlands. Wetlands and riparian areas are distinct and vitally different natural resources. This is evident by comparing the wetlands layer with the riparian connectivity layer on Attachment A, and by comparing Attachments A and E.2 Indeed, the SBLDR contains a separate Wetlands Map (Attachment E hereto) which identifies the wetland areas throughout the City that are subject to the restrictions in SBLDR Article 12. The SBLDR specifically allows an applicant to use wetlands information from the field, rather than the information on the Wetlands Map: The boundaries of wetlands shall be as shown on the Official Wetlands Map unless alternative information is submitted and reviewed pursuant to the standards and procedures for review set forth in Article 12, Section 12.02(C) and (D) of these Regulations. SBLDR § 3.03(D). In this case, the developer chose to field-delineate the wetlands rather than rely on the Wetlands Map. But this has nothing to do with riparian areas. Second, the State never confirmed that riparian areas had been field-delineated. In connection with its Preliminary Plat and Master Plan Applications, the developer submitted an email message from Rebecca Pfeiffer, CFM of the State’s Watershed Management Division 2 The ANR defines wetlands as “the vegetated, shallow-margins of lakes and ponds [and] the seasonally flooded borders of rivers and streams. . . .” ANR Guide, supra, at 51. Technically, wetlands “all are inundated by or saturated with water for at least two weeks during the growing season” and “contain wet (hydric) soils, which develop in saturated conditions and lack oxygen and other gases” and are “dominated by plant species known to be adapted to these saturated soils.” Id. Letter to DRB Chairperson Matt Cota October 10, 2019 Page 8 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com dated July 16, 2018 (10:50 AM). Ms. Pfeiffer’s email message has nothing to do with riparian areas or wildlife habitat. Rather, her email message is concerned solely with flooding and erosion. Ms. Pfeiffer’s email message states in part: “the project would appear to meet the Agency’s Procedure under [Act 250 Criterion] 1(D)” and she refers to the “Flood Hazard Area & River Corridor Protection Procedure[s]” as the guidance implementing Criterion 1(D). The Procedures document Ms. Pfeiffer cites in her July 16, 2018 email message is concerned with protecting against flooding and erosion. The Procedures document provides that its purpose is to explain how the State Department of Environmental Conservation “defines and maps flood hazard areas and river corridors for the purposes of Act 250 (10 V.S.A. § 6001 et seq.), Section 248 (30 V.S.A. §§ 248 and 248a), administering the state Flood Hazard Area and River Corridor Rule (adopted October 24, 2014), and the regulation of berming (10 V.S.A. § 1021). . . .” Vermont DEC Flood Hazard Area and River Corridor Protection Procedures § 1.0(a)(1), at 3 (Sept. 7, 2017), http://dec.vermont.gov/sites/dec/files/documents/DEC_FHARCP_Procedure.pdf (last visited Oct. 10, 2019).3 Third, the fact that Comprehensive Plan Map 7 includes a disclaimer that the City “does not guarantee accuracy” could not be a basis for disregarding the Map. Obviously, the disclaimer does not mean that Map 7 cannot be relied upon for the very purpose for which the Map was created, namely identifying protected primary conservation areas. Rather, if the disclaimer means anything, it can only be read to mean that Map 7 cannot be relied on for purposes for which it was not created – for example, for the exact location of a road, or the exact contours of a shore line. This conclusion becomes inescapable by examining the SBLDR Wetlands Map. That Map has a similar disclaimer, yet it is binding on applicants that do not field-delineate the wetlands. It would make no sense for the disclaimer to render invalid for mapping wetlands the very Map that the SBLDR includes to identify the wetlands. Similarly, it would make no sense for the Map 7 disclaimer to render the Map invalid for the purpose for which it was created. 3 “Flood Hazard Areas” are defined as “areas of the floodplain that may be inundated by a range of flood frequencies up to and including the one percent annual chance flood. . . .” Vermont DEC Flood Hazard Area and River Corridor Protection Procedures § 4.0(a)(1), at 7 (Sept. 7, 2017). “River Corridors” are defined as the “area around and adjacent to the present channel where fluvial erosion, channel evolution and down-valley meander migration are most likely to occur. River corridor widths are calculated to represent the narrowest band of valley bottom and riparian land necessary to accommodate the least erosive channel and floodplain geometry. . . .” Id. § 4.0(a)(2), at 7. In the case of Dorset Meadows, it was determined that a 50-foot setback would be adequate to protect against flooding and erosion. The 50-foot buffer did not take into account – and was not determined on the basis of – protecting the surrounding riparian areas. Letter to DRB Chairperson Matt Cota October 10, 2019 Page 9 of 9 275 College Street, PO Box 4485 | Burlington, VT 05406-4485 | phone 802 861-7000 | Fax 861-7007 | mskvt.com IV. Summary and Recommendation: For the Sake of the Environment and the Law, Please Reject the Dorset Meadows Final Plat Application. The Final Plat Application is fatally flawed and moot because it depends on TDR density that is not available under the applicable law. On top of that, the developer proposes to build in a Primary Conservation Area that the City has made clear is off-limits to development and that needs to be protected if South Burlington is to fulfill its commitment to protect its natural heritage. If ever there were a proposed development that deserves to be rejected, Dorset Meadows is it. In sum, SOS South Burlington is committed to opposing the legally untenable ecological outlaw that is Dorset Meadows. SOS South Burlington hopes the DRB will do its duty and reject this ill-conceived project. Thank you for your attention to this important and time-sensitive matter. Respectfully submitted, /s/ Daniel A. Seff Daniel A. Seff Attachments (5) cc: Mr. Paul Conner, Planning and Zoning Director (via e-mail w/Attachments) Ms. Dalila Hall, Zoning Administrative Officer (via e-mail w/Attachments) Ms. Marla Keene, Development Review Planner (via e-mail w/Attachments) Amanda S. E. Lafferty, Esq., Deputy City Attorney (via e-mail w/Attachments) Matthew B. Byrne, Esq. (via e-mail w/Attachments) Robert H. Rushford, Esq. (via e-mail w/Attachments) Save Open Spaces South Burlington (via e-mail w/Attachments) Attachment A: Comprehensive Plan, Map 7 (“Primary Conservation Areas”)   Attachment B: Overlay of Primary Conservation Areas on proposed “Dorset Meadows” Development   Attachment C: Bio‐Finder Inventory Map of the Proposed Dorset Meadows Development Site           Darker blue:      Highest priority surface water and riparian areas   Light, speckled blue:  Wetlands   Reddish‐brown:   Clayplain Forest natural community   Orange:     Habitat Block   Green line:    Level 4 wildlife linkage   Yellow line:    Level 3 wildlife linkage     Attachment D: Map of the Great Swamp      Attachment D:Map of the Great Swamp Figure 1 -South Burlington's Southeast Quadrant p: "Ty" '-V -:.:S'f "'" ft 4 , .i >-V ; 1 -I- a (St; M * -5 /I Interstate 89Si 2*i *S«Iti1 /I >,f\"— =)ft T -<ifefL ;Ay!"•its.I"i /)%'h,L /y-.-v ^ s < lO..Calkins I /I *1 T"1ftri>f Route fftf , Muddy <4 f "f Brook ; ,Corridor L i SpearSt.OorsetSt.f/J>I -i\l )->rX\"YW^-v V-"""'j ''\\''V.'*\"'a^rrf-\%1/'n -V i4VA !1 ; f.7 yi".*j t .:'m zhj (?;.r • ,/ n *1 .Great 1 ,;r t •«Q I y-^-L HSwampI \i -•U •;•v s.:;it *z.J 7*fl'J Spear ;f.-I Street \ &J -Muddy M A i Brook' 'Basin ;''1 n i . V ., I.T-nirutt a -r y\I r^»-rW ;%y r -/ Mill*The aowi gj»y I L>JL A #v'-rtt>SfN-'Vl';K ^i ti* -r : v w< ^f.it-3f 41It/I 1'J1L/r »1 iKi'i /',-ri..,^Mc > rV/r I a —m?il y ,j> h£2V'1 \J 'tf,I r »%iii m,j !" y -vV idtit >_.i -'-t- _ c?ForestedStudyAreamWetlands0Miles1 Map Source:United States Geological Survey -Burlington 1:24;000 Quadrangle Attachment E: LDR Wetlands Map      Attachment E:LDR Wetlands Map *4-Wetlands Map South Burlington,Vermont /Xy'Town Boundary f\f Roads f\f Stream Centerline /\/Water Body Water Body ~j Ponds T\Wetlands !t WSCHJCCK 1 S.GC1C 1 yyL-:c giLH arthapfior-K 1:40^000 1392 CtR photos 2000 OBrienWetland Study All date in NAJD93.VfTiont State Piano J" m If cjcandmBta ay&le-n riRuxVJtonhyCllydSoul*.Buriington Oept.or Planning 4 Zor»ng.575 Dorset St., South BiritnglDn VT 0541)3,Ph B02-S4&41QS GaFenjtBd 3f12fll [ i h s st/ IS i jiA, t stT.V/P « \* f I 4* ;t L V t I r i EHmMtmi Ihfi iKLurucytftafomattMi preeOTtod isitaeratiDcJby fti anvi an* antviicniiiuVMKBil Thi Ci>if SOUP Suiinsteri*ny imqraBiIifc:fu UiHeJiiinienl'Iwv'HUG hejfliHi can ctity tomdw}ty sto ^psdcf^.arjUarlufvqfs by a -in>MIf-cj i>LTiJIrJH'H Til >I*kn*)4i:ii oflnJIurrt enIh*Girarvl lTlfe ™p tfrntrtwIfr*p™hk:WfnHinm, .rii oui<ifibularttmunsNs tawn*31:jth.biA b ai *EptManiinf:toriunvjrid i.-rij M>;inHnn AWf' j Ung 0 1 Miles1 |P«£-33B South Burlington Land [leve.pproent Regulations Effective April 11,2016 Exhibit 2 STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 114-8-17 Vtec Snyder Group Inc. PUD Final Plat JUDGMENT ORDER For the reasons set forth in the Decision on Cross-Motions for Summary Judgment that accompanies this Judgment Order, the Court concludes that the City of South Burlington transfer of development rights bylaw (“TDR Bylaw”), as set forth in the City of South Burlington Land Use Regulations (“Regulations”) is invalid. As detailed in our Decision, we conclude that the TDR Bylaw fails to comply with the enabling statute, 24 V.S.A. § 4423 with respect to subsections §§ 4423(a)(3) and (5) and is unconstitutionally vague. We further conclude that a dead-end street longer than 200 feet may be permitted in the context of a Planned Unit Development pursuant to the Regulations Therefore, Appellants’ summary judgment motion is GRANTED IN PART and DENIED IN PART. Similarly, Snyder Group, Inc.’s motion is GRANTED IN PART and DENIED IN PART. The consequence of our determinations is that judgment is entered in favor of the neighboring Appellants and against Appellee/Applicant Snyder Group, Inc. The August 1, 2017, approval of a final plat application submitted by Snyder Group, Inc., issued by the City of South Burlington Development Review Board is therefore VOIDED. This concludes the matters before the Court in this proceeding. Electronically signed on February 28, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d). ________________________________ Thomas S. Durkin, Superior Judge Environmental Division 1 STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 114-8-17 Vtec Snyder Group Inc. PUD Final Plat Decision on Cross-Motions for Summary Judgment The present appeal is of an August 1, 2017 approval of a final plat application submitted by Snyder Group, Inc. (“Snyder”) issued by the City of South Burlington Development Review Board (“DRB”). The application proposes to construct 47 new dwelling units and maintain one existing dwelling unit, all on property located at 1302, 1340, and 1350 Spear Street in South Burlington, Vermont. The DRB approved the project as a Planned Unit Development (“PUD”). Neighboring property owners William Gilbert, Maurene Gilbert, Louise Kleh, Michael Scollins, Mary Scollins, Robert Skiff, Marley Skiff, and the Pinnacle at Spear Homeowners Association (collectively, “Appellants”) appealed that decision to this Court.1 Presently before the Court are Snyder and the Appellants’ cross-motions for summary judgment. Snyder is represented in this matter by Matthew B. Byrne, Esq., Robert H. Rushford, Esq., and Jeffrey O. Polubinski, Esq. Appellants are represented by Daniel A. Seff, Esq. The City of South Burlington (“City”) is represented by Amanda S. E. Lafferty, Esq. Legal Standard Summary judgment is appropriate where there is no genuine dispute concerning the material facts and a party is entitled to judgment as a matter of law. V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5(a)(2). When considering the facts presented to us, “the nonmoving party receives the benefit of all reasonable doubts and inferences.” Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125 (quoting Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356). When considering cross-motions for summary judgment, the Court 1 We note that Attorney Seff has moved to withdraw as counsel for Maureen and William Gilbert as they have moved from South Burlington and no longer wish to be parties in this litigation. That motion is GRANTED and Mr. & Mrs. Gilbert are relieved of their party status. We further note that, over the course of these proceedings Louise Kleh passed. 2 considers each motion individually and gives the opposing party the benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. Factual Background We recite the following facts solely for the purpose of deciding the pending motions for summary judgment. Our recitation here summarizes the facts that we have deemed undisputed and material to the legal issues raised by the parties, but should not be mistaken for factual findings, which cannot occur until after the Court conducts a trial. Fritzeen v. Trudell Consulting Eng’rs, Inc., 170 Vt. 632, 633 (2000). 1. On April 27, 2017, Snyder submitted a subdivision application for a PUD. The application proposed to raze one single family dwelling, construct 18 single family dwellings, construct three 3-unit multi-family dwellings, and construct 10 two family dwellings (“the Project”). In total, the Project consists of 48 residential units. 2. On August 1, 2017, the DRB approved final plat application #SD-17-14 for the Project. See In re the Snyder Grp. Inc. – 1302, 1340 & 1350 Spear St., #SD-17-14, Final Plat Application, Findings of Fact and Decision, at 1 (S. Burlington Dev. Rev. Bd. Aug. 1, 2017) (hereinafter “DRB Decision”). 3. The Project was reviewed and approved pursuant to the South Burlington Land Development Regulations that were last amended on June 27, 2016 (“Regulations”). 4. The Project is located on 25.93 acres at 1302, 1340, and 1350 Spear Street in South Burlington, Vermont. The parcel is in the Southeast Quadrant Neighborhood Residential Zoning District (“SEQ-NR”). 5. Spear Meadows, Inc., 1350 Spear Street, LLC, and Gary J. Farrell currently own the three parcels which comprise the Project. Snyder has an option to purchase the properties. 6. The Project was approved as a PUD and proposes 48 units, which results in 1.85 units per acre. Snyder seeks to increase the Project’s density from the applicable maximum density limit for the zoning district of 31 dwelling units to 48 units by using transferable development rights (“TDRs”). 3 TDR Bylaw 7. The City has adopted a TDR bylaw, which is set forth in Regulations § 9.05(B) and 9.13(C) (together, “TDR Bylaw”). The Bylaw became effective on April 24, 2006. 8. A municipal TDR bylaw must comply with the statutory requirements set forth in 24 V.S.A. § 4423. 24 V.S.A. § 4423(a) states that: (a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions for the transfer of development rights. The bylaws shall do all the following: (1) Specify one or more sending areas for which development rights may be acquired. (2) Specify one or more receiving areas in which those development rights may be used. (3) Define the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases. (4) Define “density increase” in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or any combination. (5) Define “development rights,” which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry. 9. Regulations § 9.13(C) sets forth the basis for the TDR Bylaw. It requires that: (a) The applicant shall demonstrate that development rights have been secured and encumbered from lands lying within the SEQ-NRP or SEQ-NRT sub-districts, or adjacent lands on the same tax parcel lying within any sub-district, or from lands acquired by the City or State for the purpose of providing public parks in any sub-district, and EITHER that the sending parcel is sufficiently encumbered against further land subdivision and development through a purchase or other agreement acceptable to the City Attorney to ensure conformance with these Regulations; OR (b) All encumbered parcels not subject to a permanent conservation easement or restriction of similar binding effect shall be reviewed as components of the PUD and shall be subject to the provisions of this article. 10. It then states in § 9.13(C)(2) that: If the conditions of 9.13(C)(1) above are met, the Development Review Board may then approve the assignment (transfer) of all or a portion of the residential development 4 density calculated for a noncontiguous encumbered parcel to another parcel to satisfy the provisions of Section 9.05 above 11. Regulations § 9.05(A) state that the maximum density within the SEQ-NR is 1.2 units per acre. Pursuant to this, the base density of the Project would be 31.12 units. 12. Regulations § 9.05(B) states that the applicable density “within a contiguous development parcel subject to a single PUD or Master plan approval shall not exceed an average density” of 4 dwelling units per acre in the Neighborhood Zoning District. It further notes that “[s]uch average densities may be achieved only under a PUD Planned Unit Development application. See Section 9.13, SEQ Review and Approval Process.” Regulations § 9.05(B). 13. Under the TDR Bylaw, the Project would have an allowable density of 103.72 units within at PUD proposal. 14. Snyder applied for approval for 17 development rights to be transferred for the Project. It proposes that the Project is the “receiving parcel” and the Bread and Butter Farm, formerly known as the Leduc Farm, on Leduc Farm Road in South Burlington as the “sending parcel.” It proposes a density of 1.85 dwelling units per acre. Dead End Street 15. Snyder proposes a 320-foot-long dead-end roadway, referenced as Street A. 16. Regulations § 9.08(A)(2)(b) state that “[d]ead end streets (e.g. culs de sac) are strongly discouraged. Dead end streets shall not exceed 200 feet in length.” 17. Nevertheless, the DRB approved Street A, in part under the possibility that it could be, at some as-yet determined point in the future, connected with another nearby roadway, Vale Drive. It also concluded that § 9.08(A)(2)(b) was waivable. Discussion Both Snyder and Appellants move for complete judgment all Questions Appellants raise in their Statement of Questions. The Town has filed a brief in opposition of Appellants’ motion. Appellants raise five Questions in their Statement of Questions.2 2 Four of those Questions have multiple subparts. This results in 37 Questions, including subparts. 5 Question 1 asks whether Regulations provisions “concerning the purported transfer of development rights, including without limitation [Regulations] §§ 2.02 . . ., 9.05(A)—(B) and 9.13(C) . . ., [are] invalid and unenforceable?” Question 2 asks whether the TDR Bylaw is unconstitutional. Question 3 asks whether the TDR Bylaw is facially unconstitutional, with subparts addressing vagueness. Question 4 asks whether the TDR is unconstitutional as applied, similarly addressing vagueness. Question 5 asks if Snyder’s proposed 320-foot dead-end street should be rejected and prohibited. The subparts of each Question address more specific aspects of these broader Questions. Before addressing the substance of these Questions, we address a threshold argument raised by Snyder: that Appellants lack standing to raise their statutory and constitutional challenges to the TDR Bylaw. We then address the remaining legal issues in turn. I. Whether the Neighbors have standing to raise their statutory and constitutional arguments. We begin by noting that Snyder’s motion is one for summary judgment. However, in substance, it appears to be a, at least in this aspect, a motion to dismiss pursuant to V.R.C.P. 12(b)(1). In this aspect of its motion, Snyder does not seek judgment on any question posed by Appellants in their Statement of Questions but instead challenges their standing to be an appealing party in this appeal. We first note that “standing is a necessary component of the court’s subject-matter jurisdiction.” Bischoff v. Bletz, 2008 VT 16, ¶ 15, 183 Vt .235 (citing Brod v. Agency of Nat. Res., 2007 VT 87, ¶ 2, 182 Vt. 234). The absence of subject matter jurisdiction may be raised at any time, including by this Court on its own motion. Id.; see, e.g., Brigham v. State, 2005 VT 105, ¶ 9, 179 Vt. 525 (mem.) (citation omitted). Therefore, we will review Snyder’s motion, solely with respect to the issue of standing, as a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. In reviewing such a motion, we accept all uncontroverted factual allegations as true and construe them in the light most favorable to the nonmoving party. See Rheaume v. Pallito, 2011 VT 72, ¶ 2, 190 Vt. 245. Snyder raises two arguments as to why Appellants lack standing in this matter. First, it asserts that Appellants have not demonstrated that the Project has the potential to result in a physical or environmental impact on their interests, and therefore do not qualify as “interested 6 persons” pursuant to 24 V.S.A. § 4465(b). Second, Snyder challenges Appellants’ standing to raise their specific statutory and constitutional arguments. We address these issues in turn. a. Physical or Environmental Impact To qualify as interested persons as Appellants seek to do in this appeal, a showing is required that such persons claiming such status (1) own or occupy property in the “immediate neighborhood” of the subject property; (2) can “demonstrate a physical or environmental impact on his interest under the criteria reviewed”; and (3) “alleges that the decision or act, if confirmed, will not be in accord with the policies, purposes, or terms” Regulations. See 24 V.S.A. § 4465(b)(3). To preserve their status as appellants, an interested person must also demonstrate that they participated in the proceeding below. 24 V.S.A. § 4471. It appears undisputed that the Appellants participated in the proceedings below and that that they live in the immediate neighborhood.3 Snyder argues, however, that they have failed to meet their burden of demonstrating a physical or environmental impact on their interests under the criteria reviewed.4 An interested person must establish a non-speculative demonstration, or a reasonable possibility, of a physical or environmental impact under the criteria reviewed. In re UVM Certificate of Appropriateness, (Vt. Super. Ct. Envtl. Div. Feb. 26, 2013) (Walsh, J.). (citations omitted) aff’d by No. 2013-301 (Jan. 23, 2014). To demonstrate such a possibility, the person or persons “must describe how the development under review will impact him or her specifically (i.e., describe a concrete and particularized injury) and must reference evidence showing that such impact is not hypothetical (i.e., demonstrate an actual or imminent injury).” Id. (citations omitted). 3 Whether Appellants have alleged that the decision on appeal, if confirmed by this Court, “will not be in accord with the policies, purposes, or terms” of the Regulations appears undisputed as well. See 24 V.S.A. § 4465(b)(3). 4 Snyder appears to argue that the criteria reviewed are not the applicable Regulations, but instead 24 V.S.A. § 4423 and the Constitution, as Appellants raise statutory and constitutional challenges. However, the Project is to be reviewed, as a general matter, under the Regulations, which Appellants contend are improper. Therefore, we conclude, for the general purposes of whether Appellants have standing to appeal pursuant to § 4465, the criteria reviewed are the Regulations. An in-depth analysis of whether Appellants may raise their statutory and constitutional challenges occurs below. 7 We note that the elements of whether a party is in the “immediate neighborhood” and whether their interests could be affected by a development are closely intertwined. See In re Appeal of Stank & Mulvaney, No. 101-7-01 Vtec, slip op. at 1 (Vt. Envtl. Ct. Oct. 15, 2001) (Wright, J.). It is uncontested that Appellants live in the immediate neighborhood of the Project. Further, Appellants have described alleged impacts that an allegedly improperly increased density would have on their interests, such as increased traffic, noise, light pollution, and adverse aesthetic impacts. These facts have not been controverted, and we conclude that Appellants have alleged a reasonable possibility of a physical or environmental impact under the criteria reviewed. We decline to require Appellants, as Snyder asserts we should, to “prove” these impacts at this stage of the proceeding. To do so would be to place a higher burden on Appellants than contemplated by the “reasonable possibility” standard. Therefore, we conclude that Appellants may generally appeal the DRB’s decision to this Court. We next turn to whether they may raise their statutory and constitutional arguments. b. Statutory and Constitutional Arguments Snyder essentially asserts that Appellants lack standing to raise their statutory and constitutional arguments because they are not the proper party to raise these issues, Snyder is. To have standing, a party must show: (1) injury-in-fact, (2) causation, and (3) redressability. Parker v. Town of Milton, 169 Vt. 74, 77 (1998) (citations omitted). “The prudential elements of standing include . . . the requirement that a plaintiff’s complaint fall within the zone of interest protected by the law invoked.’” Hinesburg Sand & Gravel Co., Inc. v. State, 166 Vt. 337, 341 (1997) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)) (citations omitted). Injury in fact is the “invasion of a legally protected interest.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, (1995) (internal quotations omitted). The determination of whether a party has suffered such an invasion “requires inquiry into the substance of plaintiff's claim.” Hinesburg Sand & Gravel Co., Inc, 166 Vt. at 341. The zone of interest test is “whether the interest sought to be protected by the [party] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153 (1970). 8 Snyder asserts that Appellants cannot show any of the three elements of standing as related to their void for vagueness argument. It further asserts Appellants are outside the zone of interest with respect to their statutory claim. Appellants assert that, because it fails to comply with statutory and constitutional requirements, the TDR Bylaw is improper. From this improper bylaw, they assert that they will be injured by an improperly permitted development which permits an increase in density beyond what is otherwise permissible in the Regulations. They further assert that, should the Court conclude that the TDR Bylaw is either improperly enacted or unconstitutional, their injury will be redressed, as the development would be limited to the density available without the use of TDRs. We begin with the constitutional claim. Neighboring property owners, as a general matter, have interests most often impacted by neighboring development. Further, as stated above, there is a reasonable possibility that Appellants’ interests will be impacted by the Project. The TDR Bylaw, if the Court concludes it is void for vagueness, therefore invades their interests as it unconstitutionally permits the increased density of a neighboring property. We therefore conclude that there is a direct link between their injury (i.e., impacts to their respective properties from increased density) and the alleged vagueness. We decline to adopt Snyder’s assertion that only applicants would or could suffer the requisite injury to have standing to raise constitutional challenges to zoning ordinances. Such a conclusion would disregard important interests that neighboring property owners have that may be impacted by a neighboring development.5 We also have found no precedent that supports Snyder’s position. We further note that, should the Court conclude the TDR Bylaw unconstitutional, Appellants alleged injury would be redressed, as the applicable maximum density in the district would apply as set out in § 9.03. We see no justification, as Snyder suggests, that a conclusion that the TDR Bylaw is unconscionably vague would somehow invalidate the Regulations in its entirety, resulting in no limitations on density, at which time Snyder could construct the Project 5 We further note that the Vermont Supreme Court has previously entertained constitutional challenges raised by neighboring property owners, without addressing the issue of their standing to raise the issue. See In re Peirce Subdivision Application, 2008 VT 100, 184 Vt. 365. 9 at any density it saw fit.6 Therefore, Appellants injury is redressable. We conclude that Appellants have standing to raise their constitutional challenges. With respect to Appellants’ statutory claim, Snyder has limited its standing challenge, asserting that Appellants are not within the zone of interest and therefore cannot raise their statutory challenges. We begin by noting we are slightly confused by Snyder’s argument. It appears to assert that Appellants lack standing to challenge § 4423, which is not what Appellants are attempting. Instead, Appellants challenge the Regulations compliance with § 4432, its enabling statute with respect to TDRs. Appellants are therefore asserting no legal right under § 4423, but assert such a right under the Regulations. As neighboring property owners, we conclude that Appellants are within the zone of interests the Regulations seek to protect.7 We therefore conclude that Appellants have standing to raise their statutory clams. Having concluded that Appellants have standing to raise all of their arguments, we turn to the substance of their challenges. II. Whether the City’s TDR Bylaw complies with 24 V.S.A. § 4423. Zoning ordinances are presumed to be valid. McLaughry v. Town of Norwich, 140 Vt. 49, 54 (1981). As such, the Court “will not interfere with zoning unless it clearly and beyond dispute is unreasonable, irrational, arbitrary or discriminatory.” City of Rutland v. Keiffer, 124 Vt. 357, 367 (1964). However, “[a] municipality has zoning authority only in accordance with, and subject to, the terms and conditions imposed by the state in making the power grant.” Flanders Lumber & Bldg. Supply Co. v. Town of Milton, 128 Vt. 38, 45 (1969) (citations omitted); see also N. Country Sportsman’s Club v. Town of Williston, 2017 VT 46, ¶ 12, 205 Vt. 1 (“While municipalities are entitled to create their own regulatory ordinances, those ordinances must conform to statutory standards.”) (citing In re White, 155 Vt. 612, 618 (1990)). 6 A more in-depth analysis of this issue is provided below in Section III. 7 Much like their constitutional challenge, we note that the Vermont Supreme Court has previously entertained a neighboring property owners challenge to zoning regulations as inconsistent with the relevant enabling statute, though without addressing the argument of whether the neighbor had standing to do so. See In re John A. Russell Corp., 2003 VT 93, 176 Vt. 520. 10 Therefore, “[s]tatutes are the state’s legislative policies; municipalities are its instrumentalities.” Kedroff v. Town of Springfield, 127 Vt. 624, 627 (1969). As such, if “an ordinance does not properly comply with or effectuate a statute, that ordinance should be read to include and effectuate the statute.” N. Country Sportsman’s Club, 2017 VT 46, ¶ 12. 24 V.S.A. § 4423 authorizes municipalities to use the possible transfer of development rights in zoning ordinances.8 Section 4423 requires that: (a) In order to accomplish the purposes of 10 V.S.A. § 6301, bylaws may contain provisions for the transfer of development rights. The bylaws shall do all the following: (1) Specify one or more sending areas for which development rights may be acquired. (2) Specify one or more receiving areas in which those development rights may be used. (3) Define the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases. (4) Define “density increase” in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or any combination. (5) Define “development rights,” which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry. In interpreting zoning ordinances, we apply familiar rules of statutory construction. In re Appeal of Trahan, 2008 VT 90, ¶ 19, 184 Vt. 262. First, we “construe words according to their plain and ordinary meaning, giving effect to the whole and every part of the ordinance.” Id. (citations omitted). If there is no plain meaning, we will “attempt to discern the intent from other sources without being limited by an isolated sentence.” In re Stowe Club Highlands, 164 Vt. 272, 8 The City and Appellants agree that § 4423 is the statutory authority under which municipalities may enact TDR programs. Snyder does not appear to contest that § 4423 authorizes the TDR Bylaw, but also states that there are other sources of authority to enact such a bylaw. Snyder specifically references 24 V.S.A. § 4410, which grants the Town broad authority to enact zoning bylaws, and the City charter. While it is true that these sources give the City authorization to regulate land use development, neither address TDRs. The Legislature, however, has set forth specific requirements that municipalities must meet to enact TDR programs. We are unconvinced that these broad grants of authorization somehow negate or supersede the Legislature clear directives set forth in § 4423. 11 280 (1995). In construing statutory or ordinance language, our “paramount goal” is to implement the intent of its drafters. Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. We will therefore “adopt a construction that implements the ordinance's legislative purpose and, in any event, will apply common sense.” In re Laberge Moto-Cross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotations omitted); see also In re Bjerke Zoning Permit Denial, 2014 VT 13, ¶ 22 (quoting Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986)) (“Our goal in interpreting [a zoning regulation], like a statute, ‘is to give effect to the legislative intent.’”). We keep these principles of interpretation in mind as we address whether the TDR Bylaw complies with each subsection of § 4423. a. 24 V.S.A. § 4423(a)(1) Section 4423(a)(1) requires that a TDR bylaw “[s]pecify one or more sending areas for which development rights may be acquired.” Snyder asserts that the Regulations comply with this subsection through § 9.13(C)(1)(a). This section states that an applicant seeking to use TDRs: [S]hall demonstrate that development rights have been secured and encumbered from lands lying within the SEQ-NRP or SEQ-NRT sub-districts, or any adjacent lands on the same tax parcel lying within any sub-district, or from lands acquired by the City or State for the purpose of providing public parks in any sub-district. Appellants disagree. They contend that § 9.13(C)(1)(a) does not comply with § 4423(a)(1) because it does not define “development rights,” which the Court analyzes below, or “sending area.” They assert that the closest the Regulations get to defining a sending area would be found within § 9.04(C), stating: “Areas designated SEQ-NR, SEQ-NRT, SEQ-VR and SEQ-VC shall be considered development areas. Areas designated SEQ-NRP are designated as conservation areas.” They assert that conservation areas are not equivalent to “sending areas,” as used in § 4423(a)(1). The Regulations do not define any area using the term “sending area” nor is the term defined in its own right. However, § 4423(a)(1) does not require such rigidity in this respect. Instead, it requires that a sending area be designated as a location where development rights may be acquired. Here, the Regulations state that development rights must be secured within the SEQ-NRP or SEQ-NRT sub-districts, or adjacent lands on the same tax parcel lying within any 12 sub-district, or from lands acquired by the City or State for the purpose of providing public parks in any sub-district. Regulations § 9.13(C)(1)(a). It then goes on to call these lands “the sending parcel.” Id. We note that in § 9.04(C), SEQ-NRP is designated as a conservation area whereas SEQ- NRT is designated as a development area. However, this section generally designates the SEQ sub-districts. Section 9.13(C) is specific to TDRs and non-contiguous PUDs. It is in this section that the Regulations specify certain areas as sending parcels. We do not conclude these different designations, one not specific to the TDR program, results in the TDR Bylaw failing to comply with § 4423(a)(1). Because we must begin our analysis with the presumption that zoning ordinances are valid, and we must read them to effectuate the statute, we conclude that the Regulations comply with § 4423(a)(1) as it identifies “sending parcels” in § 9.13(C)(1)(a). b. 24 V.S.A. § 4423(a)(2) Section 4423(a)(2) requires that a TDR bylaw “[s]pecify one or more receiving areas in which those development rights may be used.” The Regulations state that, should development rights be obtained within a sending parcel, the DRB “may then approve the assignment (transfer) of all or a portion of the residential development density calculated . . . to another parcel to satisfy the provisions of Section 9.05 above.” Regulations § 9.13(C)(2). Snyder asserts that, because Chapter 9 of the Regulations is specific to the SEQ District, and § 9.13(C)(2) identifies any other sub-district of the SEQ District as an area where development rights may be transferred (i.e., a receiving area), the TDR Bylaw complies with § 4423(a)(2). Appellants assert that the Regulations do not use the term “receiving area” and again direct us to § 9.04(C), which states that “Areas designated SEQ-NR, SEQ-NRT, SEQ-VR and SEQ- VC shall be considered development areas. Areas designated SEQ-NRP are designated as conservation areas.” It states that the term “development area” does not mean “receiving area.” They further note that § 9.05(b)(2) indicates the SEQ-NRT sub-district as an area at which density 13 may be increased under § 9.13, but also a “sending parcel” under § 9.13(C)(1), which they assert is in violation of § 4423(a). The Regulations do not define or use the term “receiving area.” However, similarly to our above discussion, § 4423(a)(2) does not require such rigidity. Instead, it requires that the Regulations designate a receiving area or areas as a location where development rights may be used. Here, the Regulation states that if rights are secured as set forth in § 9.13(C)(1), the DRB may approve the transfer of all or some of those rights “to another parcel to satisfy the provisions of Section 9.05.” Regulations § 9.13(C)(2). Regulations § 9.05(B) then states that densities may be increased pursuant to § 9.13 in the SEQ-NRT, SEQ-NR, SEQ-NRN, SEQ-VR, and SEQ-VC sub- districts.9 Further, we reach this conclusion despite the fact that the SEQ-NRT sub-district is identified both as a sending area and a receiving area. The statute merely states that a bylaw must identify area or areas as sending and receiving areas. We can find no prohibition that an area may be designated both as a receiving and sending area, as Appellants suggest. We decline to read such a prohibition into the statute. While never specifically designated as “receiving areas” we conclude that the Regulations satisfy § 4423(a)(2), in that the Regulations specify areas within which development rights may be used.10 c. 24 V.S.A. §§ 4423(a)(3), 4423(a)(4) Because of the interrelated nature of §§ 4423(a)(3) and (4) we combine our analysis of the TDR Bylaw’s compliance with these sections. Section 4423(a)(3) requires that TDR bylaws must “[d]efine the amount of the density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases.” 9 The SEQ-NRP sub-district is subject to Regulations § 9.12. 10 We note that Appellants appear to concede this fact. See Appellants’ Motion for Summary Judgement, p. 12 (“Section 9.05(B) . . . specifies the SEQ zones that can receive additional units per acre as part of the Section 9.13 TDR-based density increase (albeit without specifying the zones as ‘receiving areas’).”) 14 Section 4423(a)(4) requires that TDR bylaws must “[d]efine ‘density increase’ in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or any combination.” Because the definition of “density increase” is fundamental to § 4423(a)(3), we begin our analysis with whether the Regulations properly define “density increase.” The term “density increase” is not expressly defined in the Regulations, nor is it used. Density in the SEQ district is defined in terms of dwelling units per acre. See Regulations § 9.05. Appellants assert that the TDR Bylaw does not comply with § 4423(a)(4) both because it fails to mention the term “density increase” and because it does not speak in terms of “an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ration of floor area to lot size, or any combination.” Snyder asserts that density increase is defined in terms of building bulk or a combination of the enumerated definitions and, as such, complies with § 4423(a)(4). Snyder points out, oddly enough, the definition of the word “define.” “Define” means “(1) To state the precise meaning of (e.g., a word or sense of a word), (2) To describe the nature or basic qualities of . . ., (3) To delineate the outline or form of, (4) To specify or fix distinctly . . ., (5) To serve to distinguish.” Webster’s II New College Dictionary, Define 302 (3rd Ed. 2005). It asserts that, while the Regulations do not use the term density increase, it effectively defines the term. Section 9.05(B) sets a base density in terms of dwelling units per acre. It then sets forth the maximum density for a lot in an enumerated SEQ sub-districts in the same terms. While we note that § 9.05(B) speaks in terms of dwelling units per acre, that term does not exist in a vacuum. As a baseline, the Regulations note that, 1.2 dwelling units per acre are permissible in the SEQ district. This is reflected in Regulations Table C-2, entitled Dimensional Standards Applicable in All Districts. This table denotes minimum lot sizes for all of the SEQ sub- districts. See Regulations Table C-2. It notes the minimum lot sizes, and also presents this size in terms of maximum dwelling units per acre. Id. This is presented as 1.2 dwelling units per acre. Id. 15 Table C-2 also sets forth maximum building heights and percentage of the site which may be covered by buildings, both components of building bulk. See 3 Arden H. Rathkopf et al., Rathkopf’s The Law of Zoning and Planning § 54.2 (4th Ed.). We conclude that the Regulations adequately define “density increase” in terms of dwelling units per acre, since the definition includes both terms of lot size, as related to dwelling units per acre, as well as terms of building bulk. Therefore, we conclude that the Regulations comply with § 4423(a)(4). We next turn to whether the Regulations comply with § 4423(a)(3) and “[d]efine the amount of density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases.” The Regulations give a base density, 1.2 dwelling units per acre, and a maximum allowable density by use of TDRs, which ranges from 4 to 8 dwelling units per acre, depending on the relevant SEQ sub-district that has been defined as a receiving area. See Regulations § 9.05(B). As such, we conclude that the Regulations have effectively defined the amount of density increase allowable in a receiving area, in compliance with § 4423(a)(3). With respect to the second aspect of § 4423(a)(3), however, the Regulations provide no guidance. Section 9.13(C)(1) states that an applicant “shall demonstrate that development rights have been secured and encumbered” in a sending area. It notes that the parcel must be “sufficiently encumbered against further land subdivision and development.” Regulations § 9.13(c)(1)(a). There is nothing in the Regulations regarding how much, either in terms of land mass or parcel size, that would result in sufficient “development rights” to be regarded as an allowable density increase.11 We therefore conclude that there is no definition of the quantity of development rights necessary to obtain the density increases set forth in § 9.05(B). For this reason, we conclude that the Regulations do not comply with § 4423(a)(3). 11 Snyder appears to argue that, by adequately describing how much density increase is allowable, the Regulations have satisfied how much development rights must be secured to use TDRs. This argument fails to address that development rights and density increase are two different statutory requirements. Snyder’s attempt to conflate the two does not provide a sufficient explanation. 16 d. 24 V.S.A. § 4423(a)(5)12 Section 4423(a)(5) requires that a bylaw: Define “development rights,” which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A. chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry. The term “development rights” is not defined by the Regulations. The Regulations require that applicants “demonstrate that development rights have been secured and encumbered” in a sending district. Regulations § 9.13(C)(1)(a). It then goes on to say that the parcel must be: [S]ufficiently encumbered against further land subdivision and development through a purchase or other agreement acceptable to the City Attorney to ensure conformance with these Regulations [or . . .] [a]ll encumbered parcels not subject to a permanent conservation easement or restriction of similar binding effect shall be reviewed as components of the PUD and shall be subject to the provisions of this article. Regulations § 9.13(C)(1)(a)—(b). Snyder asserts that development rights are defined as “all or a portion of the residential development density calculated for a noncontiguous encumbered parcel or another parcel to satisfy the provisions of Section 9.05 above.” Regulations § 9.13(C)(2).13 Appellants argue that the Regulations do not formally define the term, nor do they reference the minimum statutory definition set forth in § 4423(a)(5). Therefore, they assert the Regulations fail to comply with the subsection. We agree with Appellants; the Regulations are lacking in both respects. Section 9.13(C)(1)(a) states that encumberment could occur “through a purchase or other agreement 12 While we conclude that the Regulations fail to comply with § 4423(a)(3), we include an analysis of compliance with § 4423(a)(5) pursuant to Appellants’ Question 1.8. 13 We note that Snyder additionally argues that defining “development rights” in terms of conservation easements would be illogical. Citing Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 348 (2002) (stating that the Court “will always avoid a statutory construction which leads to absurd or irrational results.”). It asserts that, because conservation easements limit development, it cannot be included in a definition of “development rights.” This argument misses the purpose of the term “development rights” and the need for its definition in the context of the § 4423 and TDR programs generally. Development rights are those rights to be secured in a place designated for conservation or limited development, a sending area, and used in area designated for development, a receiving area. As such, the statute directs that the definition set forth the encumberment to be secured in the sending area, for use in the receiving area, at a minimum as including a conservation easement. This is neither irrational or absurd in the context of a TDR program. 17 acceptable to the City Attorney.” There are no references to what type of encumberment would be sufficient to satisfy the Regulations, nor an inclusion of the minimum definition as set forth in the statute. While subsection (b) references a conservation easement, it also mentions restrictions “of similar binding effect.” Such a fleeting mention does not remedy the fact that they are patently lacking in this respect. Snyder argues that we should look to the plain meaning of the words “development” and “rights” pursuant to Regulations Article 2.01. While we could look to the plain meaning of the words “development” and “rights,” such an exercise would not result in the Regulations meeting the minimum statutory requirements. It would therefore be a fruitless endeavor. We therefore conclude that the Regulations fail to comply with § 4423(a)(5). We next turn to whether this and our above conclusions regarding §§ 4423(a)(3) and 4423(a)(5) must result in the invalidation of the TDR Bylaw. III. Whether the TDR Bylaw is invalid due to failure to comply with §§ 4423(a)(3) and (5). Snyder asserts that, even if the Court concludes the TDR Bylaw does not comply with § 4423, it is still valid. Citing In re Walker, 156 Vt. 639 (1991); and In re Duncan, 155 Vt. 402 (1990). Both the Walker and Duncan decisions reference municipalities that failed to enunciate mandatory statutory requirements regarding conditional use approval standards; specifically, “that a proposed conditional use shall not adversely affect the utilization of renewable energy resources.” Walker, 156 Vt. at 639 (citing 24 V.SA. § 4407(2) (repealed eff. July 1, 2004). In Walker, the Court concluded that an “ordinance must be read to include the statutory requirements [set forth in the conditional use statute], and those requirements will govern whether or not they are expressly set forth in the ordinance.” Walker, 156 Vt. at 639. Both cases are distinct from the present matter. Both matters reflected a failure to include an explicit statutory standard, whereas here the statute requires the ordinance to define terms, to which the statute provides varying degrees of direction. The Regulations at issue here fail to provide the necessary direction; an implicit inclusion of a statutory reference does not in this instance cure the omission. 18 We conclude the Regulations fail to comply with § 4423(a)(3) for failure to define the quantity of development rights necessary to obtain increased development rights. Looking to the statute, there is no definition therein, but only the requirement to define. The same is true for § 44239(a)(5). Section 4423 does not lend itself to the same “gap filling” as proposed for the conditional use approval standards examined in Walker and Duncan. We therefore conclude the TDR Bylaw is invalid. Having reached this conclusion, we address its impact on the pending application. Regulations § 1.03 states that: Should any section, sub-section, paragraph, sentence, clause, provision, or phrase of these land development regulations be declared by any competent jurisdiction to be unconstitutional or invalid, such decision shall not affect the validity of any other portion of these land development regulations, except the section in question. Here, we conclude that Regulations §§ 9.13(C)(1)(a), 9.13(C)(2), and 9.05(B)(2)—(6) do not comply with § 4423 and are, therefore, invalid. Snyder asserts that this conclusion somehow invalidates either the entirety of the Regulations or all density requirements therein. We disagree. Nothing within this decision effects other aspects of the Regulations including, of particular import here, § 9.05(A), which sets forth the maximum allowable density in the SEQ district without the use of TDRs. Having found no reason to disturb or invalidate § 9.05(A) or any other aspect of the Regulations not above discussed, we conclude that the TDR Bylaw provision is severable from the rest of the Regulations. Therefore, the Project is limited to 31 units.14 We next turn to Appellants’ constitutional challenges. 14 Snyder argues that, “because land-use regulations are in derogation of property rights, any uncertainty in their meaning must be decided in favor of the property owner.” Citing Agency of Nat. Res. v. Weston, 2003 VT 58, ¶ 16, 175 Vt. 573. Under this tenant of statutory construction, Snyder reiterates its assertion that any invalidation of the TDR Bylaw would eliminate density requirements in either South Burlington generally or the SEQ district in particular, and that Snyder would therefore be permitted to construct the Project without limitation. This argument lacks merit for two reasons. First, our above conclusions regarding the TDR Bylaw’s compliance with § 4423 is not based in any ambiguity or uncertainty in the Regulations overall meaning. Second, pursuant to the Regulations severability clause, the purported destruction of the non-TDR related density requirements would be improper. 19 IV. Whether the TDR Regulation is constitutional. Appellants assert that the TDR Bylaw is unconstitutionally void for vagueness both on its face and as applied. When reviewing a municipal land use decision, we begin with the presumption that a zoning regulation is constitutional. In re Highlands Dev. Co., LLC, No. 194-10-03 Vtec, slip op. at 13 (Vt. Envtl. Ct. Feb. 2, 2010) (Wright, J.) (citing Hunter v. State, 2004 VT 108, ¶ 31, 177 Vt. 339). Our approach to complaints of “standardless, arbitrary discretion focuses on the criteria for due process and equal protection.” Pierce Subdivision, 2008 VT 100, ¶ 19 (citing In re Handy, 171 Vt. 336, 345-46 (2000). We will consider two factors to determine whether a regulation is void for vagueness and thus unconstitutional. First, we consider whether the regulation is “sufficiently precise that an ordinary person using the means available and ordinary common sense can understand the meaning and comply” and does not leave an applicant “uncertain as to what factors are to be considered by the [municipal panel].” Rogers v. Watson, 156 Vt. 483, 491 (1991) (citing Brody v. Barasch, 155 Vt. 103, 111 (1990); Town of Westford v. Kilburn, 131 Vt. 120, 124 (1973). Second, we consider whether the regulation provides standards that sufficiently guide municipal decisions and therefore do not allow for the “exercise of discretion in an arbitrary or discriminatory fashion.” Pierce Subdivision, 2008 VT 100, ¶ 20 (quoting Kilburn, 131 Vt. at 124). Additionally, a balance must be struck between the flexibility a municipal panel must have in reviewing a specific development proposal and a landowner’s right to know what standards govern an application. See Rogers, 156 Vt. at 491; see also Handy, 171 Vt. at 349; Kilburn, 131 Vt. 124 (“On one hand the standards governing the delegation of such authority should be general enough to avoid inflexible results, yet on the other hand they should not leave the door open to unbridled discrimination.”). Thus, while we must “invalidate ordinances that ‘fail to provide adequate guidance” and allow for “ad-hoc decision making that is essentially arbitrary,” we will uphold general standards “accompanied by some ability of landowners to predict how discretion will be exercised.” Pierce Subdivision, 2008 VT 100, ¶ 20 (quoting Kilburn, 131 Vt. at 125); Handy, 171 Vt. at 349. For this reason, we consider regulations in the context of the entire ordinance so that “even if some of the bylaws’ objectives are general,” it may be constitutional 20 “as long as other provisions impose specific limits to guide and check the [decisionmaker’s] discretion.” Rogers, 156 Vt. at 491; Pierce Subdivision, 2008 VT 100, ¶ 24 (“By providing both general and specific standards for [] review, the bylaw strikes an appropriate balance between providing guidance to the Commission and avoiding inflexible requirements which would defeat the creativity and flexibility required to effectuate the goals of the [bylaws].”)). Appellants assert that the TDR Bylaw is unconstitutionally vague because it fails to provide any standards for the DRB, or the Court on appeal, to apply when determining whether to approve the transfer of all or some of the TDR-based density requested by an applicant. Further, they assert the TDR Bylaw does not provide any standards for the City Attorney to apply when determining whether a parcel is sufficiently encumbered under § 9.13(C)(1). Snyder asserts that the TDR Bylaw is constitutional because it sets forth the limited range within which a density can be approved when using TDRs. It also asserts that by providing that the City Attorney must “ensure conformance” with the Regulations, the TDR Bylaw provides sufficient guidance when determining whether encumberment is sufficient. Section 9.13(C)(2) allows the DRB to “approve the assignment (transfer) of all or a portion of the residential development density” when approving the use of TDRs. Section 9.05(A) sets the maximum allowable density within the SEQ district and § 9.05(B) sets the maximum allowable density through the use of TDRs within the various SEQ subdistricts. As discussed above, there is no guidance on the quantity of development rights that must be secured in order for TDRs to be utilized. Similarly, there is no guidance regarding what the DRB should consider when approving the assignment of all or a portion of the development rights. A mere maximum and minimum, in the absence of these important aspects of lawful TDR programs, are not sufficiently precise such that an ordinary person could understand how the TDR program works, specifically with respect to the transfer of development rights, and would leave an applicant and those concerned by a proposed development uncertain as to what factors are to be considered by the DRB when determining the transfer of development rights. See Rogers, 156 Vt. at 491. 21 As the Regulations are, in effect, standardless regarding this issue, and lack sufficient guidance for the DRB to employ when making determinations regarding the number of TDRs the DRB will allow to be used in an area. Therefore, we conclude that the TDR Bylaw is unconstitutionally vague on its face.15 V. Whether the proposed dead-end street is permissible. When interpreting a zoning ordinance, we apply the familiar rules of statutory construction. Trahan, 2008 VT 90, ¶ 19. A complete review of the legal standards we apply in doing so is set forth above. Of import to our present analysis is whether the Court affords deference to a municipality’s interpretation of its ordinance. The parties both direct us to In re Confluence Behavioral Health LLC CU. In that decision, we noted that: The interpretation by an appropriate municipal panel of its own zoning regulations can have some import in our analysis. In re Duncan, 155 Vt. 402, 408 (1990) (“we have consistently held that ‘absent compelling indication of error, we will sustain the interpretation of a statute by the administrative body responsible for its execution.’”) (citation omitted). However, as noted above, municipal zoning decisions are appealed to the Environmental Division de novo. 24 V.S.A. § 4472(a). We therefore do not defer to the municipal panel’s interpretation of a zoning term when that determination is itself the subject of an appeal. The exception to this rule is where the municipal panel has established a pattern of consistent interpretation. In re Korbet, 2005 VT 7, ¶ 10, 178 Vt. 459; 38 Thasha Lane Dev. Water & Sewer Fees Denial, No. 136-9-14 Vtec, slip op. at 4—5 (Vt. Super. Ct. Envtl. Div. Aug. 28, 2015) (Walsh, J.). No. 15-2-16 Vtec, slip op. at 11 (Vt. Super. Ct. Envtl. Div. Jan. 23, 2017) (Durkin, J.) aff’d by 2017 VT 112. Section 9.08 sets forth “additional dimensional and design requirements” for the SEQ-NR, SEQ-NRN, and SEQ-NRT sub-districts. Section § 9.08(A)(2)(b) states that “[d]ead end streets (e.g. cul de sac or hammer-head) that are not constructed to an adjacent parcel to allow for future connection are strongly discouraged. Such dead end streets shall not exceed 200 feet in length.” Regulations § 9.08(A)(2)(b). PUDs are: 15 Having reached this conclusion, we need not reach whether the TDR Bylaw is unconstitutional as applied. We note that the impact of this conclusion on the application before the Court is identical to that in Section III, above. 22 One or more parcels of land to be developed as a single entity, the plan for which may propose any authorized combination of density or intensity transfers or increases, as well as the mixing of land uses. This plan, as authorized, may deviate from bylaw requirements that are otherwise applicable to the area in which it is located with respect to the area, density or dimensional requirements or allowable number of structures and uses per lot as established in any one or more districts created under the provisions of these regulations. The specific requirements of a PUD and the area, density and dimensional provisions that may be modified are defined in each district in which PUDs are allowed. Regulations § 2.02 (emphasis added). Snyder asserts that, because the Project is a PUD, the DRB and this Court on appeal may deviate from dimensional requirements pursuant to the definition of PUDs. Therefore, it asserts that the oversized road may be permitted. Additionally, and alternatively, it asserts that the roadway standards are waivable pursuant to § 15.12(D)(5). Appellants disagree, arguing that § 9.08(A)(2)(b) is mandatory and non-waivable. Therefore, it asserts that Street A is impermissible as proposed. First, we address whether the Regulations permit deviations from § 9.08(A)(2)(b) when permitting PUDs. PUDs, by their definition, permit the DRB, and this Court on appeal, flexibility in imposing land use restrictions. Specifically, their definition states that “dimensional requirements” may be deviated from. Section 9.08(A)(2)(b) is included as a dimensional and design standard for the SEQ district. See Regulations § 9.08. Therefore, by the plain language of the Regulations, § 9.08(A)(2)(b) is the type of requirement that the Regulations contemplated PUDs deviating from in some instances. While § 9.08(A)(2)(b) provides clear requirements on dead-end streets, there is nothing in the Regulations to show that this would not be subject to the flexibility afforded to PUDs by their nature as set forth in Regulations § 2.02. Therefore, we conclude that deviation from § 9.08(A)(2)(b) is permissible with respect to PUDs. Second, we address whether the § 9.08(A)(2)(b) requirement is waivable.16 Section 15.12 governs standards for roadways, parking and circulation in PUDs generally. Included in this section is the provision that “[n]othing in this section shall be construed to limit the authority of the DRB to grant waivers of public roadway standards subject to the provisions of § 15.12(D)(4).” 16 Having reached the above conclusion, an analysis of whether § 9.08(A)(2)(b) is waivable is largely unnecessary. However, we reach the issue as it is presented by Appellants’ Questions 5.4—5.10. 23 Regulations § 15.12(D)(5); see also Regulations § 15.12(D)(4) (provisions related to roadway connections to adjacent parcels). We must begin by noting that, while Appellants present a number of Questions related to the issue of waiver, their briefs in large part do not address the issue. Appellants include the bald assertion that § 9.08(A)(2)(b) is non-waivable, but this appears to be based solely on their interpretation of § 9.08(A)(2)(b) and not how it interrelates with § 15.12(D)(5). Section 15.12 sets for the “Standards for Roadways, Parking and Circulation” in subdivisions and PUDs. Included in this are roadway criteria in § 15.12(D). Section 9.08, however, sets forth specific dimensional and design requirements in the SEQ-NRT, SEQ-NR, and SEQ-NRN sub-districts. Neither section reference one another, nor is § 9.08(A)(2)(b) identified as a public roadway standard, but instead a component of street, block and lot patterns within the enumerated sub-districts.17 Other than the fact that § 9.08(A)(2)(b) relates to roadways, we can find no interpretation that supports the conclusion that it can be waived pursuant to § 15.12(D)(5). As such, we conclude that § 9.08(A)(2)(b) cannot be waived. This conclusion, however, does not disturb our above conclusion that the DRB may deviate from § 9.08(A)(2)(b) when permitting PUDs. Conclusion For the above stated reasons, we conclude that the TDR Bylaw is invalid as it does not comply with 24 V.S.A. § 4423. We further conclude that the TDR Bylaw is unconstitutionally vague. Finally, we conclude that the DRB, and this Court on appeal, may permit a roadway longer than 200 feet in length in the context of a PUD application. This concludes the matter before the Court. A Judgement Order accompanies this Decision. 17 Snyder asserts that the Town’s conclusion that § 9.08(A)(2)(b) is waivable is entitled to some deference. However, having received no indication of consistent application of this interpretation and the matter being the subject of the present appeal, we afford this interpretation no deference. See Confluence Behavioral Health LLC CU, No. 15-2-16 Vtec, slip op. at 11 (Jan. 23, 2017). Further, to the extent Snyder asserts that other oversized dead end streets have been approved pursuant to § 15.12(D)(4) for future interconnection, because we reach the above conclusion that the DRB may deviate from § 9.08(A)(2)(b), we conclude that an analysis of this issue is unnecessary. 24 Electronically signed on February 28, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d). ________________________________ Thomas S. Durkin, Superior Judge Environmental Division Exhibit 3 Snyder Group, Inc. Act 250 Appeal ENTRY REGARDING MOTION Title: Motion for Reconsideration (Motion 5) Filer: Appellants Michael and Mary Scollins, Robert and Marley Skiff, and the Pinnacle at Spear Homeowners Association Attorney: Daniel A. Seff Filed Date: September 6, 2019 Response filed on 09/09/2019 by Attorney Evan P. Meenan for the Vermont Natural Resources Board Response in Opposition filed on 09/19/2019 by Attorney Celeste E. Laramie for The Snyder Group, Inc. Reply filed on 09/22/2019 by Attorney Daniel A. Seff for Appellants The motion is GRANTED. The District # 4 Environmental Commission (“District Commission”) approved and issued an Act 250 permit to Snyder Group, Inc.; Spears Meadows, Inc.; 1350 Spear, LLC.; and Gary Farrell (“Snyder Group”) for the development of land located at 1302 and 1350 Spear Street in South Burlington, Vermont. Snyder Group proposed to develop 47 new dwelling units, with associated infrastructure improvements, to subdivide, and to demolish an existing structure (“the Project”).1 A group of neighboring property owners (“Appellants”) oppose the Act 250 permit.2 Presently before the Court is Appellants’ motion to reconsider this Court’s August 14, 2019 Entry Order denying Appellants’ July 17, 2019 Motion to Stay this appeal pending the Supreme Court’s 1 The Project has been referred to as a 48-unit development throughout its lifecycle because, in addition to the 47 new units, an existing residence will remain at 1350 Spear Street. 2 Appellants are Michael Scollins, Mary Scollins, Robert Skiff, Marley Skiff, and the Pinnacle at Spear Homeowners Association. We resolved certain questions relating to their party status under Criterion 9(B) in a May 22, 2019 decision. See In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec (Vt. Super. Ct. Envtl. Div. May 22, 2019) (Durkin, J.). STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 107-10-18 Vtec In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 2 of 5 decision in a companion appeal related to Snyder Group’s application for a municipal zoning permit for the Project (“Municipal Appeal”).3 Appellants raise a concern that this Court’s August 14, 2019 Entry Order (“August 14 Entry Order”) did not consider Appellants’ August 10, 2019 Reply Memorandum in Support of their motion to stay (“Reply Memorandum”) and August 14, 2019 Supplemental Memorandum in support of their motion to stay (“Supplemental Memorandum”). Appellants urge the Court to reconsider the issues raised in these memoranda concerning whether (1) the “hardship or inequity” standard is applicable;4 (2) ruling on a “potential future reduction” in the Project’s number of units would amount to a substantial change constitutes an improper advisory opinion;5 and (3) a continuance would delay this matter for an unspecified period of time. Snyder Group contends Appellants do not meet the standard required for a motion to reconsider because there is no evidence that the Court did not consider the Reply Memorandum prior to issuing our Decision and Appellants are merely attempting to relitigate old matters. Appellants’ motion is made pursuant to V.R.C.P. 59(e), which governs motions to alter or amend a judgment.6 There are four principal reasons for granting a Rule 59(e) motion: “(1) to correct manifest errors of law or fact upon which the judgment is based; (2) to allow a moving party to present newly discovered or previously unavailable evidence; (3) to prevent manifest injustice; and (4) to respond to an intervening change in the controlling law.” Old Lantern Non- Conforming Use, No. 154-12-15 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sep. 13, 2017) (Durkin, J.) (quotations omitted); In re Green Mountain Power Corp., 2012 VT 89, ¶ 50, 192 Vt. 429 (stating that under Rule 56(e), “[t]he trial court enjoys considerable discretion in deciding whether to grant such a motion to amend or alter”) (quoting In re SP Land Co., 2011 VT 104, ¶ 16, 190 Vt. 418). 3 The related appeal concerns the City of South Burlington Development Review Board’s municipal approval for the Project. See In re Snyder Grp. Inc. PUD Final Plat, No. 114-8-17 Vtec, at 1–3 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.). This Court decided, on cross-motions for summary judgment, that the Project exceeded the municipality’s maximum density limit of 1.2 units per acre and that South Burlington’s “transferrable development rights” regulation was unconstitutionally vague and failed to comply with its enabling statute, 24 V.S.A. § 4423(a). Id. at 4–21. 4 This Court’s Decision stated that Appellants “must make out a clear case of hardship or inequity in being required to go forward if there is a possibility that a stay will damage someone else.” In re Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Aug, 14, 2019) (Durkin, J.) (citing In re Woodstock Cmty. Tr. & Hous. Vt. PRD, 2012 VT 87, ¶ 36, 192 Vt. 474); see also In re Killington Resort Parking Project Act 250 Permit Application, No. 173-12-13 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. May 13, 2015) (Durkin, J.). 5 In our August 14 Entry Order, this Court concluded that ruling on this question would constitute an improper advisory opinion and the Court did not have sufficient information necessary to make such a determination. In re Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 Vtec at 3 (Aug. 14, 2019) (citing In re Regan Subdivision Permit, No. 188-9-09 Vtec, slip op. at 5 (Vt. Super. Ct. Envtl. Div. June 18, 2013) (Durkin, J.)); see also In re Appeal of 232511 Invs., Ltd., 2006 VT 27, ¶¶ 18-19, 179 Vt. 409) (declining to issue an advisory opinion); In re Paynter 2-Lot Subdivision, No. 160-7-08 Vtec, slip op. at 9-10 (Vt. Envtl. Ct. May 1, 2009) (Wright, J.). 6 V.R.C.P. 59(e) gives the Court broad power to alter or amend a 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 Enter., Inc., 164 Vt. 582, 588 (1996); Reporter’s Notes, V.R.C.P. 59(e). In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 3 of 5 The grant of a motion to reconsider, alter, or amend “a judgment after its entry is an extraordinary remedy which should be used sparingly.” In re Zaremba Grp. Act 250 Permit, No. 36-3-13 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J) (quotation omitted); see also State v. Tongue, 170 Vt. 409, 414 (2000), (quoting State v. Bruno, 157 Vt. 6, 8 (1991))(stating that “it is better practice for the court to reconsider a pretrial ruling ‘where serious grounds arise as to the correctness of the . . . ruling’”). Rule 59(e) motions are “not intended as a means to reargue or express dissatisfaction with the Court’s findings of fact and conclusions of law” and cannot “merely repeat[] arguments that have already been raised and rejected by the Court.” Town Clarendon v. Houlagans MC Corp. of VT., No. 131-10-17 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Apr. 10, 2014) (Walsh, J.); Appeal of Van Nostrand, Nos. 209- 11-04 Vtec, 101-5-05 Vtec, slip op. at 4 (Vt. Super. Ct. Envtl. Div. Dec. 11, 2006) (Durkin, J.) (quoting Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d § 2810.1) (internal footnotes omitted) (stating that motions to reconsider should not be used to “relitigate old matters”). Given this strict standard of review, motions to reconsider are rarely granted. In re Martin & Perry, No. 20-10-18 Vtec, slip op. 2 (Vt. Super. Ct. Envtl. Div. Jan. 22, 2010) (Durkin, J.) (citing In re Rivers Dev., LLC Appeals, Nos. 7-1-05 Vtec, 183-8-07 Vtec, 248-11-07 Vtec, & 157-7- 08 Vtec, slip op. at 5 (Vt. Envtl. Ct. Nov. 21, 2008) (Durkin, J.)). As a preliminary matter, this Court notes that it both had access to and considered Appellants’ Reply and Supplemental Memoranda. As noted by Appellants, this Court had access to the Reply Memoranda and the absence of a filing indication in our August 14 Entry Order, for both the Reply Memorandum and Supplemental Memorandum, was a mere technical error.7 This Court considered the Reply Memoranda and concluded that “Appellants have not shown the type of one-sided, probable hardship and inequity our standards require.” In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec, slip op. at 3 (Vt. Super. Ct. Envtl. Div. Aug. 14, 2019) (Durkin, J.). This is evidenced by the Entry Order’s discussion of the Court’s substantial discretion in considering a motion to stay and holding that the applicable precedent instructs this Court to apply the “hardship or inequity” test. Id. at 2–3 (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); State v. Schreiner, 2007 VT 138, ¶ 14, 183 Vt. 42; In re Killington Resort Parking Project Act 250 Permit Application, No. 173-12-13 Vtec, slip op. at 2-3 (Vt. Super. Ct. Envtl. Div. May 13, 2015) (Durkin, J.)). In addition, and as is evidenced by the Entry Order, this Court recognized and clearly summarized the contentions that Appellants stated in their Reply Memorandum.8 See In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 2 (Aug. 14, 2019). This Court also considered the Vermont Supreme Court’s scheduling of oral argument for the Municipal Appeal and determined that the scheduling did not supersede the weight given to an applicant’s perspective on how the 7 For clarification, this Court’s filing system develops templates that automate the input of responses and replies filed by parties. In this instance, the lack of an indication on the August 14 Entry Order that the Reply and Supplemental Memoranda had been received and considered was a technological error, caused by the fact that we had begun (but not completed) the drafting of the Entry Order before those filings were received. This Court both received and considered both Memoranda. 8 In our Decision, this Court noted that Appellants’ challenges, stated in their Reply Memoranda, that (1) a reduction in units would be a substantial and material change; (2) proceeding would result in a waste of resources; and (3) a stay is in the best interest of Snyder Group. In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 2 (Aug 14, 2019). In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 4 of 5 permitting process would proceed best or provide a specific period of time for a continuance.9 Id. at 3 (citing In re Killington Vill. Act 250 Master Plan Application, No. 147-10-13 Vtec at 2 (May 13, 2015)); In re Wagner & Guay Permit, No. 150-10-14 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Mar. 27, 2015) (Walsh, J.). Therefore, this Court considered both Memoranda in its Entry Order. Appellants assert the basis for granting reconsideration in this case is to correct manifest errors of law or fact upon which the judgment is based. Appellants assert that this Court incorrectly applied the “hardship or inequity” standard. Appellants further argue in the alternative that, should the “hardship and inequity” standard apply, this Court must acknowledge a change in intervening law that occurred when this Court decided in the Municipal Appeal that South Burlington’s TDR Bylaw was invalidated. In re Snyder Group Inc. PUD Appeal, No. 114-8- 17 Vtec, slip op. at 23 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019)(Durkin, J.). We address these two arguments below, in that order. First, Appellants assert this Court erred in applying the Woodstock “hardship or inequity” standard. Appellants raised this issue in their Reply Memoranda and this Court clearly determined that “precedent instructs” this Court to apply the hardship or inequity standard. In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 3 (Aug. 14, 2019) (citing In re Woodstock Cmty. Tr. & Hous. Vt. PRD, 2012 VT 87, ¶ 36, 192 Vt. 474). In re Woodstock’s decision to apply the “hardship inequity” standard is binding precedent on this Court. In re Woodstock, 2012 VT 87. Moreover, we note that contrary to Appellants’ assertion, the Vermont Supreme Court in In re Chaves merely noted that the Environmental Division has discretion in deciding continuances and did not supplant the “hardship or inequity” standard. In re Chaves A250 Permit Reconsider, 2014 VT 5, ¶ 16, 195 Vt. 467, 475, abrogated by In re B & M Realty, LLC, 2016 VT 114, ¶ 16, 203 Vt. 438; see Dodge v. Precision Const. Prod., Inc., 2003 VT 11, ¶ 25, 175 Vt. 101 (citing Vt. Accident Ins. Co. v. Howland, 160 Vt. 611, 612 (1993) (mem.)) (stating that the Supreme Court will “apply a ruling prospectively only if (1) we overrule past precedent or decide an issue of first impression whose resolution was not clearly foreshadowed”). Therefore, this Court did not make a manifest error of law in our August 14 Entry Order. Second, Appellants argue that even if the “hardship or inequity” standard does apply, there has been a change in intervening law because this Court invalidated South Burlington’s former TDR Bylaw, thereby expressly limiting the Project to a maximum of 31 dwelling units, in its February 28, 2019 Decision in the Municipal Appeal. See In re Snyder Group Inc. PUD Final Plat, No. 114-8-17 Vtec, slip op. at 23–24 (Vt. Super. Ct. Envtl. Div. Feb. 28, 2019) (Durkin, J.). Our August 14 Entry Order stated we could not presently decide “whether a potential future reduction in the Project’s number of units would amount to a substantial change” as it would 9 Appellants note that their Supplemental Memorandum was filed seventeen minutes prior to issuance of this Court’s Decision and infer that this Court lacked awareness of the filing. It is important to note that the Court was aware and considered the one-page Supplemental Memorandum, which included a brief statement regarding the scheduling of the oral argument in the Municipal Appeal and no additional legal challenges. Here, merely scheduling a date for oral augment does not provide a specific time for a continuance. Id. at 3 (stating that “[a] continuance would delay this matter for an unspecified period of time, while postponing progress on certain issues that will need to be resolved in any case”). In re: Snyder Group, Inc. Act 250 Appeal, No. 107-10-18 (EO on Mot. to Reconsider) (12-24-2019) Page 5 of 5 constitute an advisory opinion and we lack the information necessary to make such a determination. In re Snyder Grp., Inc. Act 250, No. 107-10-18 Vtec at 3 (Aug. 14, 2019). Generally, “a judgment of an adjudicative body remains valid until reversed or annulled.” In re Ashline, 2003 VT 30, ¶ 9, 175 Vt. 203 (citing Davidson v. Davidson, 111 Vt. 24, 29 (1939). It therefore follows that this Court’s February 28, 2019 Decision presently has a preclusive effect. As such, the City of South Burlington’s TDR Bylaw is currently considered invalid and unconstitutional, subject to the pending Vermont Supreme Court determination. However, upon further reflection of these matters and the nature of the impending Supreme Court determination, this Court concludes that it should STAY this appeal, in the interest of avoiding conflicting judgments, until the Supreme Court renders its determinations in the pending Municipal Appeal. For these reasons, we GRANT Appellants’ motion for reconsideration of our August 14, 2019 Entry Order denying Appellants’ July 17, 2019 Motion to Stay this appeal as Appellants have presented adequate grounds to reconsider the Decision. We therefore conclude that this pending appeal from the Act 250 determinations must be STAYED until the Supreme Court renders its determinations in the Municipal Appeal. So Ordered. Electronically signed on December 24, 2019 at Brattleboro, Vermont, pursuant to V.R.E.F. 7(d). ________________________________ Thomas S. Durkin, Superior Judge Environmental Division Notifications: Daniel A. Seff (ERN 1514), Attorney for Appellants Michael and Mary Scollins, Robert and Marley Skiff, and the Pinnacle at Spear Homeowners Association Evan P. Meenan (ERN 1632), Attorney for the Vermont Natural Resources Board Matthew B. Byrne (ERN 2486), Attorney for Appellee The Snyder Group, Inc. Robert H. Rushford (ERN 4714), Attorney for Appellee The Snyder Group, Inc. Celeste E. Laramie (ERN 8852), Attorney for Appellee The Snyder Group, Inc. Alison Milbury Stone (ERN 7087), Attorney for the Vermont Agency of Agriculture svalcour