In re B&M Realty, LLC

• Decision Date: 21 October 2016
• Docket Number: No. 2015-454,2015-454
• Parties: In re B&M Realty, LLC
• Court: Vermont Supreme Court

2016 VT 114

In re B&M Realty, LLC

No. 2015-454

Supreme Court of Vermont

June Term, 2016

October 21, 2016

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas G. Walsh, J.

Robert E. Woolmington of Witten, Woolmington, Campbell & Bernal, P.C., Manchester Center, for Appellant Two Rivers-Ottauquechee Regional Commission.

Bridget C. Asay, Solicitor General, and Elizabeth M. Tisher, Assistant Attorney General, Montpelier, for Appellant Natural Resources Board.

David K. Mears, Environmental and Natural Resources Law Clinic, South Royalton, for Amici Curiae Vermont Natural Resources Council and Preservation Trust of Vermont.

Nathan H. Stearns of Hershenson, Carter, Scott & McGee, P.C., Norwich, for Amici Curiae Bennington County Regional Commission, Central Vermont Regional Planning Commission, Northwest Regional Planning Commission, Southern Windsor County Regional Planning Commission, and Windham Regional Commission.

Paul S. Gillies of Tarrant, Gillies & Richardson, Montpelier, for Cross-Appellant B&M Realty, LLC.

PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Teachout, Supr. J., Specially Assigned

¶ 1. ROBINSON, J. Appellants Natural Resources Board and Applicant Two Rivers-Ottauquechee (TRO) Regional Commission appeal the Environmental Division's award of an Act 250 permit to Applicant B&M Realty, LLC, to construct a large mixed-use business park near the Interstate 89 Exit 1 interchange in the Town of Hartford. The trial court concluded that the project satisfied Act 250, including the requirement that it conform with the 2007 TRO Regional Plan. The Natural Resources Board and the TRO Regional Commission appeal, arguing that the project is inconsistent with mandatory and unambiguous provisions in the regional plan. Applicant cross-appeals, asserting that the 2007 Regional Plan does not apply, and that the Court need not consider the plan because the proposed development will not have substantial regional impact. We conclude that the 2007 Regional Plan applies and that the trial court's conclusion that the project will have substantial regional impact is supported by the evidence, but hold that the project is inconsistent with several provisions in the regional plan. We accordingly reverse.

I. Overview of Land Use Planning in Vermont

¶ 2. The Vermont Planning and Development Act, 24 V.S.A. ch. 17, governs municipal and regional planning in Vermont. The Act is intended to "encourage the appropriate development" of state lands by providing for a "coordinated, comprehensive planning process and policy framework" to guide decisions by municipalities, regional planning commissions, and State agencies. 24 V.S.A. § 4302(a), (b)(1). To that end, the Act provides for municipal planning commissions, id. § 4321 et seq., and creation of regional planning commissions by the act of voters or municipal legislative bodies, subject to State approval. Id. § 4341. The regional commissions are composed of at least one representative appointed from each member municipality. Id. § 4342. Those commissions are charged with, among other things, preparing regional plans consistent with the general goals of the Planning and Development Act articulated in § 4302. Id. § 4345a(5).

¶ 3. These broad land-use goals established by the Legislature include "maintain[ing] the historic settlement pattern of compact village and urban centers separated by rural countryside," discouraging "strip development along highways," and encouraging economic growth "in locally designated growth areas," or in "existing village and urban centers, or both." Id. § 4302(c)(1)(A)-(B). In addition to serving these goals, regional plans must identify land useswithin each region that will further the region-specific goals set forth in § 4347. Plans should also be "compatible with approved municipal and adjoining regional plans." Id. § 4345a(5).

¶ 4. Regional plans provide a comprehensive framework for regional development. They must include, among other elements, "[a] statement of basic policies of the region to guide the future growth and development of land and of public services and facilities, and to protect the environment" as well as a "map and statement of present and prospective land uses." Id. § 4348a(1)-(2). Plans must also discuss regional energy needs, transportation issues, utility issues, and numerous other regional issues. Id. § 4348a(3)-(9). In this way, the plans serve to "guid[e] and accomplish[] a coordinated, efficient and economic development of the region" that will "best promote the health, safety, order, convenience, prosperity and welfare of the inhabitants as well as efficiency and economy in the process of development." Id. § 4347.

¶ 5. The Act calls for "widespread citizen involvement" in the regional planning process. Id. § 4345a(5)(A). At the outset of the planning process and throughout the process, regional planning commissions are required to "solicit the participation of local citizens and organizations by holding informal working sessions that suit the needs of local people." Id. § 4348(a). The commissions must solicit comments from a range of identified stakeholders, and hold two or more public hearings within the regions on any proposed plans or amendments. Id. § 4348(b), (c). At least 60% of a region's commissioners representing municipalities must vote to adopt a regional plan before it can take effect. Id. § 4348(f).

¶ 6. In furtherance of the Legislature's goal of a coordinated state planning process, both municipal plans and regional plans are made enforceable through Act 250. Thus, applicants who seek Act 250 permits must show that their projects are "in conformance with any duly adopted local or regional plan." 10 V.S.A. § 6086(a)(10). Regional planning commissions must assist district environmental commissions in assessing whether a project complies with a regional plan. 24 V.S.A. § 4345a(13). A regional plan's provisions will apply in Act 250 proceedings "to theextent that they are not in conflict with the provisions of a duly adopted municipal plan." Id. § 4348(h)(1). If a conflict exists, the regional plan will be given effect if the project "would have a substantial regional impact." Id. § 4348(h)(2).

II. Facts and Proceedings Below

¶ 7. Applicant owns three separately deeded lots covering 167.7 acres in Hartford. The property is located between U.S. Route 4 and Old Quechee Road near the north and southbound I-89 exit ramps. It is two miles away from Quechee Village and Quechee Gorge and five miles from White River Junction. The property is mostly undeveloped, although it presently contains a single-family dwelling and a 2433-square-foot commercial building. There are miscellaneous scattered businesses south of the property on U.S. Route 4, including a former real estate office and a country store with an upstairs apartment. There is a convenience store/gas station adjacent to U.S. Route 4 opposite the I-89 southbound ramp and U.S. Route 4 intersection.

¶ 8. Applicant proposes a development project designed as a mixed-use business park with office, retail, restaurant and residential uses to proceed in three phases. Phase 1 of the project contemplates a clustered mixed-use development encompassing more than 115,000 square feet of new construction on approximately 15.5 acres. The first construction cycle consists of 18,142 square feet of office space, 18,142 square feet of retail space, and a 5,667 square foot restaurant. The second cycle consists of 15,110 additional square feet of office space and 15,110 additional square feet of retail space, and nine residential units. The final construction cycle of phase 1 consists of 33,000 square feet of office space. Phase 2 consists of fifty residential units. The Phase 1 buildout includes approximately 2700 linear feet of internal roadway designed more or less as a loop, and the proposal contemplates a "center" that would mimic a small version of Church Street Marketplace in Burlington, Vermont.

¶ 9. In July 2005, applicant and then-landowners David and Ernest Punt sought to rezone portions of the Punt property and create a new zoning district, the Quechee InterstateInterchange (QII). The municipal planning commission approved the zoning amendment in September 2005. In 2006, applicant presented a sketch plan to the municipal planning commission for the "Quechee Highlands Project."

¶ 10. The regional plan in effect at that time, the 2003 TRO Regional Plan, did not address the Town of Hartford because the Town joined the TRO Regional Commission in 2004, after the 2003 Regional Plan went into effect. In 2007, the TRO Regional Commission replaced the 2003 Regional Plan with the 2007 TRO Regional Plan, which did specifically address Hartford.

¶ 11. In May 2012, applicant sought zoning permits for its project from the Hartford Planning Commission. Applicant indicated its intent to develop approximately 120,000 square feet of commercial space and 10,000 square feet of residential space on its property. The planning commission approved the project in October 2012. Then, in December 2012, applicant sought an Act 250 permit. The district environmental commission unanimously denied its request, concluding, among other things, that the project failed to conform with the 2007 Regional Plan.

¶ 12. Applicant appealed to the Environmental Division of the Superior Court. Applicant first moved for partial summary judgment, asking the court to rule that the 2003 Regional Plan governed its Act 250 application. Applicant offered two grounds. First, it argued that its right to Ac...