In re Hildebrand, No. 05-537.

Docket NºNo. 05-537.
Citation2007 VT 5, 917 A.2d 478
Case DateJanuary 16, 2007
CourtUnited States State Supreme Court of Vermont
917 A.2d 478
2007 VT 5
In re Appeal of HILDEBRAND.
No. 05-537.
Supreme Court of Vermont.
January 16, 2007.

[917 A.2d 479]

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

917 A.2d 480

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...

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15 practice notes
  • In re Lathrop Ltd., No. 2013-444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...that were approved by the commission were not properly before the court." Id. at 424, 631 A.2d at 1133; see also In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568, 917 A.2d 478 (mem.) (stating that unappealed permit conditions are final under 24 V.S.A. § 4472 and may not be challenged collater......
  • In re Lathrop Ltd. P'ship I, Nos. 13–444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...that were approved by the commission were not properly before the court.” Id. at 424, 631 A.2d at 1133 ; see also In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568, 917 A.2d 478 (mem.) (stating that unappealed permit conditions are final under 24 V.S.A. § 4472 and may not be challenged collate......
  • In re Cvps/Verizon Act 250 Land Use Permit, No. 07-441.
    • United States
    • August 6, 2009
    ...rules. We review the Environmental Court's summary judgment ruling using the same standard as the Environmental Court. In re Hildebrand, 2007 VT 5, ¶ 9, 181 Vt. 568, 917 A.2d 478 (mem.). Summary judgment is appropriate where there is no genuine issue of material fact and any party is entitl......
  • Clark & Castle Final Plan Amendment, 52-4-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 22, 2020
    ...that "although the original conditions may no longer be challenged, they may be amended in appropriate circumstances." In re Hildebrand, 2007 VT 5, ¶ 12, 181 Vt. 568 [hereinafter Hildebrand]; see also Stowe Highlands, 2009 VT 76, ¶ 7; In re Nehemiah Assocs., 166 Vt. 593 (1996) hereinafter N......
  • Request a trial to view additional results
15 cases
  • In re Lathrop Ltd., No. 2013-444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...that were approved by the commission were not properly before the court." Id. at 424, 631 A.2d at 1133; see also In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568, 917 A.2d 478 (mem.) (stating that unappealed permit conditions are final under 24 V.S.A. § 4472 and may not be challenged collater......
  • In re Lathrop Ltd. P'ship I, Nos. 13–444
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 20, 2015
    ...that were approved by the commission were not properly before the court.” Id. at 424, 631 A.2d at 1133 ; see also In re Hildebrand, 2007 VT 5, ¶ 11, 181 Vt. 568, 917 A.2d 478 (mem.) (stating that unappealed permit conditions are final under 24 V.S.A. § 4472 and may not be challenged collate......
  • In re Cvps/Verizon Act 250 Land Use Permit, No. 07-441.
    • United States
    • August 6, 2009
    ...rules. We review the Environmental Court's summary judgment ruling using the same standard as the Environmental Court. In re Hildebrand, 2007 VT 5, ¶ 9, 181 Vt. 568, 917 A.2d 478 (mem.). Summary judgment is appropriate where there is no genuine issue of material fact and any party is entitl......
  • Clark & Castle Final Plan Amendment, 52-4-19 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • May 22, 2020
    ...that "although the original conditions may no longer be challenged, they may be amended in appropriate circumstances." In re Hildebrand, 2007 VT 5, ¶ 12, 181 Vt. 568 [hereinafter Hildebrand]; see also Stowe Highlands, 2009 VT 76, ¶ 7; In re Nehemiah Assocs., 166 Vt. 593 (1996) hereinafter N......
  • Request a trial to view additional results

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