In re John A. Russell Corp., 99-418, 02-019, 02-102.

• Decision Date: 15 October 2003
• Docket Number: No. 99-418, 02-019, 02-102.,99-418, 02-019, 02-102.
• Citation: 838 A.2d 906
• Parties: In re JOHN A. RUSSELL CORP. and Crushed Rock Inc. In re Appeal of Gale and Frank Licausi, John Furneaux, Andrea McCormack, Eric Jensen and Lisa Chapman. In re Appeal of John Russell Corp.
• Court: Vermont Supreme Court

838 A.2d 906

In re JOHN A. RUSSELL CORP. and Crushed Rock Inc.

In re Appeal of Gale and Frank Licausi, John Furneaux, Andrea McCormack, Eric Jensen and Lisa Chapman.

In re Appeal of John Russell Corp.

No. 99-418, 02-019, 02-102.

Supreme Court of Vermont.

October 15, 2003.

Present DOOLEY, JOHNSON, SKOGLUND, JJ., KAREN R. CARROLL, Superior Judge, Specially Assigned.

ENTRY ORDER

¶ 1. In these consolidated appeals, we review a decision of the Environmental Board and two rulings of the Environmental Court concerning proposals to construct an asphalt manufacturing plant in the Town of Clarendon. In Docket No. 1999-418, appellant John Russell Corp. contends that the Board erred in denying an Act 250 permit based on a finding that the proposal was not in conformity with the Town plan, asserting: (1) there was no Town plan in effect at the time of the Board's ruling; and (2) even if there was a valid plan, the relevant provisions relied upon by the Board cannot be construed to find nonconformity. We agree with the second contention, and therefore reverse. ¶ 2. In Docket No. 2002-019, appellants Gale and Frank LiCausi contend that the Environmental Court erred in granting a conditional use permit for the project, asserting: (1) the conditional use provision of Town's zoning ordinance conflicts with state law; (2) the court lacked the authority to address the issue; and (3) the evidence failed to support the court's finding that the proposal would not adversely affect the character of the area. We agree with the third contention, in part, and reverse and remand.

¶ 3. In Docket No. 2002-102, appellant John Russell Corp. contends that the Environmental Court erred in concluding that its proposal to build the plant in a different location failed to comply with the height limitations in the Town's zoning ordinance. We affirm the ruling.

¶ 4. The background for all three appeals may be briefly summarized. Additional facts will be presented as necessary in the discussion which follows. Russell owns a 400- to 500-hundred-acre parcel of land in the Clarendon River valley on the west side of Route 7, on which it operates a gravel pit and stone quarry under a conditional use permit issued in 1983. Russell also holds an Act 250 permit for the existing operation.

¶ 5. In 1998, Russell applied for a conditional use permit to construct a bituminous asphalt plant on a twenty-five to thirty-acre portion of the property. The proposed hot mix plant would consist of a rotary dryer, a batch tower and a pugmill mixer, a bag house, and a smokestack. Additional components would include a scale house, a lab/control building, and three tanks for storage of associated fuel and asphalt cement, two of 15,000 gallons and one of 10,000 gallons. The plant height would be fifty-five feet, with a sixty-five and a half foot smokestack.

¶ 6. The area immediately surrounding the site of the proposed asphalt plant contains woodlands, agricultural uses including farms with silos and hayfields, several residences, a dairy supply business, a campground near the river, a repair shop, and a former retail building now used as a church. A deer yard is located near the project site, although the plant would not be operated in the winter when the yard is in use. None of the other uses in the area incorporate a smokestack. Access to the site is from Route 133, which affords views of mixed residential, agricultural, and commercial uses along the valley floor, and wooded hillsides above.

¶ 7. The zoning board of adjustment (ZBA) granted Russell's application for a conditional use permit (CUP). Several neighbors, including Gale and Frank LiCausi, appealed the ruling to the Environmental Court. Following several preliminary rulings and an evidentiary hearing, the court issued a written decision granting the application, with a number of conditions designed to mitigate the plant's impact on the area. This appeal (Docket No. 2002-019) followed.

¶ 8. While the conditional use application was proceeding, Russell applied for an Act 250 permit. In December 1998, the District Commission denied the application, and Russell appealed to the Environmental Board. In August 1999, the Board issued a decision, denying the application for noncompliance with 10 V.S.A. § 6086(a)(10) (Criterion 10),¹ finding that the proposal was inconsistent with the 1995 Town plan then in effect. Russell appealed the Board's decision to this Court. About a year later, while the appeal was pending, Russell and the Vermont Attorney General filed a joint motion to remand the matter to the Board to determine the status of the Town plan, which had expired in June 2000. See 24 V.S.A. § 4387(a) (town plan expires every five years unless readopted or a new plan is adopted). In an order dated September 25, 2000, we granted the motion. The Board, in turn, remanded the case to the District Commission, which ruled that the 1995 plan continued to apply to the application. Russell appealed to the Board, which issued a new decision in January 2002. The Board concluded that the 2000 Town plan, which the selectboard had adopted in November 2000, applied to Russell's permit application under the "pending ordinance" doctrine and reaffirmed its decision that the proposal was inconsistent with the 2000 plan, which was identical in all pertinent respects to the 1995 plan.² This appeal (Docket No. 1999-418) followed. The Vermont Attorney General's Office has filed an amicus curiae brief in support of appellees Town of Clarendon and Clarendon Planning Commission.

¶ 9. While the foregoing matters were proceeding, Russell filed another application with the ZBA, seeking a zoning permit to construct the asphalt plant on the east side of Route 7B in the Town's commercial-industrial district. The ZBA denied the application on the ground that the proposal violated the height limitations applicable in the district. Russell appealed to the Environmental Court, which denied the application on the same basis. This appeal (Docket No. 2002-102) followed.

¶ 10. Because of the obvious association of subject matter, we have consolidated the three appeals for purposes of argument and decision.

Docket No. 1999-418

¶ 11. Russell first contends that the Board erred in ruling that the application was governed by the 2000 Town plan. More specifically, Russell argues that the Board erred in determining that the "pending ordinance" rule made the 2000 plan applicable to the proposal. Alternatively, assuming that the rule applies, Russell contends that the Board erred in failing to find that its rights had vested prior to the beginning of the pendency period, on September 13, 2000, when it filed the joint motion to remand. Thus, because there was allegedly no valid plan in effect or applicable to the development proposal after the remand, the Board could not have denied the application on the basis of nonconformity with the plan.

¶ 12. We start with the undisputed conclusion that the original application was governed by the 1995 plan. In In re Preseault, 132 Vt. 471, 474, 321 A.2d 65, 66 (1974), we held that a project's nonconformance with a town plan adopted after a developer had applied for an Act 250 permit could not be the basis of a permit denial under 10 V.S.A. § 6086(a)(10). Subsequently, in In re Molgano, 163 Vt. 25, 31-33, 653 A.2d 772, 774-76 (1994), we relied on Preseault and Smith v. Winhall Planning Comm'n, 140 Vt. 178, 181-82, 436 A.2d 760, 761 (1981) (adopting the "minority" rule that development rights vest under regulations in effect when application is filed), to hold that conformance with a town plan under Act 250 must be "measured with regard to zoning laws in effect at the time of a proper zoning permit application," rather than more restrictive subsequently enacted zoning regulations.

¶ 13. We do not foreclose that an applicant could withdraw an application and resubmit it to take advantage of less restrictive, subsequently enacted regulations. Russell did not, however, withdraw and resubmit, but instead sought to take advantage of the temporary lapse of the Town plan. Under these circumstances, the 1995 plan applies.

¶ 14. We reach the same conclusion based on a variation of the Board's rationale. As indicated above, the provisions of the 1995 and 2000 plans implicated in this appeal are identical. As also indicated above, the Board decided that the 2000 plan applied under the "pending ordinance" doctrine because at the time this Court remanded the case to the Board, the Clarendon Planning Commission had already approved the 2000 plan and submitted it to the Town selectboard, which had noticed a public hearing on it.

¶ 15. Although we discussed the pending ordinance doctrine with respect to a zoning case in Handy, 171 Vt. at 350, 764 A.2d at 1238, we did not clearly adopt it in that case. We need not create a general rule here. The statutory scheme anticipates that some period of time may elapse between the expiration and readoption of a town plan, as occurred here, and specifically provides that upon expiration of the plan all bylaws then in effect shall remain in effect until the plan is readopted. 24 V.S.A. § 4387(c). It goes on to state:

(d) The fact that a plan has not been approved shall not make it inapplicable, except as specifically provided by this chapter. Bylaws, capital budgets and programs shall remain in effect, even if the plan has not been approved.

Id. § 4387(d). There is nothing in the chapter on municipal planning and zoning that specifically provides for the effect of an unapproved plan in an Act 250 proceeding. Although the wording is somewhat confusing, we take this statutory section as an expression of the Legislature that a pending plan must be given effect even if it is not yet finally approved. See Town of Killington v. State, 172 Vt. 182, 188, 776 A.2d 395, 400 (2001) (paramount goal in construing a statute is to implement the intent of the Legislature). In essence, the plan...