In re Hildebrand

• Decision Date: 16 January 2007
• Docket Number: No. 05-537.,05-537.
• Parties: In re Appeal of HILDEBRAND.
• Court: Vermont Supreme Court

917 A.2d 478

2007 VT 5

In re Appeal of HILDEBRAND.

No. 05-537.

Supreme Court of Vermont.

January 16, 2007.

Present: REIBER, C.J., JOHNSON, SKOGLUND, and BURGESS, JJ., and CRAWFORD, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. Joan Hildebrand, and her son James, appeal the Environmental Court's denial of their motion for summary judgment. The court ruled that the Waitsfield Planning Commission had appropriately denied the Hildebrands' application to amend the subdivision permit because they had not demonstrated a change in circumstances. We affirm.

¶ 2. A review of the history of the parcel under consideration is necessary to understand the case. In 1992, the Neill family sought approval from the Waitsfield Town Planning Commission to subdivide their 183.5 acre farm, located on both sides of East Warren Road, into four lots. Lots 1, 2, and 4 totaled approximately thirty acres, which the Neills intended to sell. The plan left the Neills with approximately 150 acres, known as lot 3. The Waitsfield Town Plan designates the segment of East Warren Road that runs through the Neill farm as a "scenic corridor . . . characterized by panoramic views across open fields on both sides of the road." Because of the town plan, the Waitsfield Planning Commission originally raised concerns that the proposed development had the potential to disrupt an important viewshed. Concerns were also raised by an adjacent landowner whose land had conservation restrictions placed on it. In response to these concerns, the Neills proposed limiting the southern two-thirds of lot 4 to agricultural use only, prohibiting further development on this acreage. Lot 4 is approximately sixteen acres. The planning commission adopted the covenants drafted by the Neills, and by a written decision dated March 4, 1992, the planning commission approved the subdivision subject to seven specific conditions. Importantly, the written decision prohibited further subdivision of lots 1, 2, and 4, and required that the agricultural fields in lot 4 be maintained as open fields through grazing, cultivation or mowing on a yearly basis. The decision was not appealed. The Neills sold lot 4 to the Verguras in 1992 with a covenant in the deed intended to preserve the meadowland. Joan Hildebrand and her husband bought lot 4 in 1995. Their deed also contained a covenant preserving the meadowland.

¶ 3. On April 30, 2004, Joan Hildebrand, through her son, submitted a subdivision application to the planning commission to further divide lot 4 into two parcels of approximately ten and approximately six acres. James Hildebrand wishes to construct a single family home and install a driveway on the six acre parcel, which is currently undeveloped meadowland. The Waitsfield Subdivision Regulations allow for amendment of previously issued subdivision permits, but they do not set out standards an applicant must meet to gain approval for an amendment.

¶ 4. The planning commission expressed its opposition to modifying or eliminating the existing permit conditions absent a showing of significant changed or mitigating circumstances. In response, the Hildebrands submitted letters from members of the Neill family, original grantors and now neighboring property owners of the Hildebrands' parcel. The letters indicate that the Neills do not oppose subdivision of lot 4 to allow another single family home. The Hildebrands presented no other evidence of changed circumstances beyond the assertion that "times have changed." The commission denied the application for subdivision approval, and the Hildbrands appealed to the Environmental Court. The Town of Waitsfield entered an appearance in the appeal.

¶ 5. The Hildebrands moved for summary judgment and submitted affidavits from the Neill family members stating, again, that they had no objection to amending the permit. Both the Hildebrands and the Town agreed that there is no clear rule regarding the standard applicable to requests to amend previously granted municipal land use permits. Both parties urged the Environmental Court to use Act 250 as a guide and to apply the standards articulated by the Environmental Board and upheld by this Court in In re Stowe Club Highlands, 166 Vt. 33, 687 A.2d 102 (1996), and In re Nehemiah Assocs., 166 Vt. 593, 689 A.2d 424 (1996) (mem.), reconsidered after remand, 168 Vt. 288, 719 A.2d 34 (1998) (hereinafter Nehemiah II).

¶ 6. In Stowe Club Highlands, the original developer, Stowe Club Associates, sought and received an Act 250 permit to develop a 250 acre tract of land with a conference center, hotel, townhouses, and a 23-lot subdivision. 166 Vt. at 34, 687 A.2d at 103. As in this case, one condition in the permit required a meadow on the project tract to "be retained for agricultural uses." Id. In addition, the district commission had made findings, based on statements in the permit application, that the "Meadow Lot" would remain open and would be reserved for agriculture. Id. These findings were incorporated into the permit as a condition of approval. Id. The property was conveyed to a new owner, Stowe Club Highlands, and it sought to amend the original permit to allow the construction of a single-family home on the meadow lot. Id. Both the district commission and the Environmental Board concluded that the proposed development violated the original permit governing the project, and denied the permit modification. Id.

¶ 7. On appeal, this Court stated, "[t]he central question . . . is not whether to give effect to the original permit conditions, but under what circumstances those permit conditions may be modified." Id. at 37, 687 A.2d at 105. We approved the board's decision to examine: "(a) changes in factual or regulatory circumstances beyond the control of a permittee; (b) changes in the construction or operation of the permittee's project, not reasonably foreseeable at the time the permit was issued; or (c) changes in technology." Id. at 38, 687 A.2d at 105. Our decision in Nehemiah II refined the permit-amendment standards articulated in Stowe Club Highlands and Nehemiah I, noting that they are intended to "assist in assessing the competing policies of flexibility and finality in the permitting process." Nehemiah II, 168 Vt. at 294, 719 A.2d at 37. We further explained that "[e]ven where the Board finds such a change, there are certain situations where an amendment may not be justified, for instance where the change was reasonably foreseeable at the time of permit application. Otherwise, the initial permitting process would be merely a prologue to continued applications for permit amendments." Id. at 294, 719 A.2d at 38 (internal quotation marks omitted).

¶ 8. The Environmental Court applied these standards, denied the Hildebrands' motion for summary judgment and granted summary judgment in favor of the Town, thereby affirming the planning commission's denial of the subdivision amendment application. This appeal followed.

¶ 9. This Court reviews summary judgment rulings de novo, applying the same standard as the trial court. Washington v. Pierce, 2005 VT 125, ¶ 17, 179 Vt. 318, 895 A.2d 173. Summary judgment is appropriate when the "pleadings, [and] depositions, . . . together with the affidavits, if any, . . . show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." V.R.C.P. 56(c)(3). "Summary judgment when appropriate may be rendered against the moving party." Id.

¶ 10. The Hildebrands raise four issues on appeal. First, they argue that the permit conditions may be challenged directly in a petition to amend them, despite the language of 24 V.S.A. § 4472(d). Second, they suggest that if the original conditions cannot be attacked directly, they may still be amended. Third, they challenge the Environmental Court's use of Stowe Club Highlands as a means for evaluating permit amendments. Finally, they...