In re Benson Rd. Site Plan & Cond. Use Application, 20-ENV00023

Case DateDecember 02, 2021
CourtSuperior Court of Vermont

Benson Road Site Plan & Cond. Use Application

No. 20-ENV00023

Superior Court of Vermont

December 2, 2021



A group of neighbors ("Neighbors"), [1] appeal a decision of the Town of Manchester Development Review Board ("DRB") granting conditional use and site plan approval to a proposed "eco-resort" on adjacent property. Applicant Jeffrey Nyewide ("Applicant") cross-appeals one condition imposed by the DRB as part of its conditional use approval. The Town of Manchester ("The Town") has entered an appearance as an interested party. Presently before the Court is Neighbors' motion for partial summary judgment on their Statement of Questions ("Motion"), which Applicant opposes. We address the Town's motion to join or adopt Applicant's Memorandum in Opposition to summary judgment in a separate entry order. Neighbors are represented in this case by Nicholas AE Low, Esq. Applicant is represented by Christopher D. Roy, Esq. The Town is represented by James F. Carroll, Esq.

Legal Standard

To prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5. The nonmoving party "receives the benefit of all reasonable doubts and inferences," but must respond with more than unsupported allegations in order to show that material facts are in dispute. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. For the purpose of reviewing this motion, the Court "will accept as true the allegations made in opposition to . . . summary judgment, so long as they are supported by


affidavits or other evidentiary material." Id.; Pettersen v. Monahan Safar Ducham, PLLC, 2021 VT 16, ¶ 9.


We recite the following factual background and procedural history, which we understand to be undisputed unless otherwise noted, based on the record now before us and for the sole purpose of deciding the pending motions. The following are not specific factual findings with relevance outside of this summary judgment decision. See Blake v. Nationwide Ins. Co., 2006 VT 48, ¶ 21, 180 Vt. 14 (citing Fritzeen v. Trudell Consulting Eng'rs, Inc., 170 Vt. 632, 633 (2000) (mem. op.)).

1. Applicant Jeffrey Nyewide applied to the Town of Manchester Development Review Board ("DRB") for conditional use and site plan approval to develop an "eco-resort" on property he owns. Appellant's Statement of Undisputed Material Facts (Hereinafter "SUMF") 4, 7.

2. Applicant's specific proposed uses for the property include accommodations for overnight guests; a restaurant and other food services; recreational activities for guests (including continuation of an existing on-site falconry school); and hosting weddings, corporate retreats, and other events. Exhibit 5 to Appellant's SUMF at 2-4.

3. Applicant's proposed new and redeveloped structures include 43 new double occupancy "camp shelters" which form the primary lodgings for guests; a new lodge building; renovating an existing farmhouse for further lodging and dining facilities; renovating an existing barn and garage; and several smaller new or existing structures. SUMF at 16, Exh. 5 at 3-5. Total proposed occupancy is 46 double occupancy rooms/shelters, which could house up to 92 persons.

4. Applicant has noted that the proposed camp shelters resemble "tiny house[s]." All camp shelters are proposed to be built on an elevated steel chassis with wheels and no permanent foundations, to be connected to power, water supply and septic systems, and to have enclosed living areas. Exh. 5 at 5.

5. Applicant's proposed existing or new on-site road and trail features include a mix of gravel and pervious paved surfaces. SUMF at 23-27; Permittee/Appellee's Response to Appellants' Statement of Undisputed Material Facts (Hereinafter "Response") at 23-27.

6. Applicant's proposed parking and service areas include a mix of grass and pervious paved surfaces. SUMF & Response at 28.

7. Applicant's engineers provided a stormwater management plan for inclusion with the DRB application. This plan stated that the pervious pavement to be used "cannot take extremely heavy


loads, large sand spreading in winter, or heavy salt use and continue [to] maintain its integrity and environmental friendliness." Applicant's engineer therefore recommends against such activities. SUMF & Response at 21-22; Exhibit 14 to SUMF at 2-3. In a letter submitted to the Act 250 District Commission, however, the same engineer stated that "occasional heavy trucks visiting the site should not damage or impair the functionality of the pervious pavement." SUMF & Response at 21-22; Exhibit B to Response.

8. The property consists of three parcels. See Exhibit 15 to SUMF under "General Notes."

9. Cumulatively the three parcels have an area of roughly 53.61 acres. SUMF 7.

10. The property sits mainly in the Rural Agricultural Zoning District ("RA District"), with a small portion in the Forest Conservation Zoning District. SUMF 7. All proposed development, with the exception perhaps of a proposed "Summit Outpost pavilion" is in the RA District. Exhibit 6 to SUMF at S.D. 101.

11. The entire property sits in Zone B of the Aquifer Protection Overlay Zoning District. Some portions of the property also sit in the Flood Hazard Overlay Zoning District. SUMF 8-9.

12. On October 15, 2020, the DRB issued a decision granting conditional use and site plan approval for the project. As part of this decision, the DRB imposed certain conditions on development. In re Benson Rd. Site Plan & Cond. Use Application, Findings of Fact and Conclusions of Law, Decision, & Order, No. 2020-05-034 (Town of Manchester Dev. Review Bd. Oct. 15, 2020).

13. Notably, the DRB limited dining in the restaurant to the project's lodging guests. Id. at "Decision and Order" ¶ 2.

14. The DRB also placed limitations on the number of events the project could host, stratified by the number of attendees at each event. Thus, the DRB limited the project in its first two years of operation to a maximum of 6 events involving 93 to 150 attendees, a maximum of 6 events involving 150 to 300 attendees, and a maximum of two events with more than 300 attendees. The DRB required the Applicant to secure an event permit from the Town for events with more than 300 attendees. The DRB required the Applicant to re-apply to the DRB after two years for permission to host events with a number of attendees exceeding the occupancy of the project's lodging (92 persons). Id. at "Decision and Order" ¶¶ 3-4.

15. The DRB required the Applicant to reduce a proposed overflow parking area meant primarily to accommodate event attendees not staying at the project's lodging from 77 spaces to 40 spaces. Id. at "Decision and Order" ¶ 7.


16. The DRB required the Applicant to provide shuttle service to events exceeding 150 attendees for attendees not staying at the project's lodging. Id. at "Decision and Order" ¶ 5

17. The DRB required this shuttle service to pick up event attendees lodging off-site but locally from their respective lodgings and required the Applicant to secure an off-site parking lot from which this shuttle service would transport attendees not lodging locally. Id.

18. The Applicant has also applied for an Act 250 permit for the project. The Applicant has revised some features of the proposal as submitted to the DRB in its application for the Act 250 Permit. Notably, the Applicant has altered slightly the floor plans for the proposed camp shelters, appearing to change their total square footage and the areas both within and outside their footprint that are covered by a canvas canopy. Response to SUMF at 17; Exhibit A to Response at 1.

19. Neighbors appealed the DRB's decision to grant a conditional use permit and site plan approval, alleging numerous infirmities with the application and/or Bylaws under which it was approved.

20. Applicant cross-appealed, contesting only the DRB's condition that he must re-apply after two years for permission to host events with attendees exceeding the occupancy of the project's lodging.


We now consider Neighbors' motion for summary judgment on Questions 1, 2, 3, 5, 11, 13, 14, and 15 of their Statement of Questions. We review these requests in the numeric order of the referenced Question.

1. "Should the Application be denied because it does not comply with lot coverage standards of Ordinance § 4.15?"

Neighbors' argument on Question 1 has two components. Neighbors first assert that the lot coverage calculation provided by the Applicant is incorrect. Their second argument is that, employing the correct lot coverage figure, which exceeds the statutory maximum, the Court must deny the application. Because we find below under Question 2 that the waiver criteria in the ordinance are not void, and that a waiver as to the maximum lot coverage is therefore possible, we conclude that exceeding the maximum lot coverage is not fatal to the application. Summary judgment is therefore denied Neighbors as to the second part of this Question.

However, to provide clarity to the parties ahead of a possible trial, we will examine below the arguments as to what the applicable regulations require be included in lot coverage calculations. Neighbors argue Applicant's provided lot coverage calculations have the following infirmities: (1) the


numerator (i.e. the area of the lot that is covered by developed features)[2] does not include the footprints of the proposed 43 camp shelters; (2) the numerator does not include the proposed event tent pad; (3) the numerator does not include undevelopable land; and (4) the Applicant applies a 50% reduction to the area of certain roads and service areas when including them in the numerator, based on the permeability of the...

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