In re Snyder Grp., Inc.

• Decision Date: 21 February 2020
• Docket Number: No. 2019-122,2019-122
• Court: Vermont Supreme Court
• Parties: In re Snyder Group, Inc. PUD Final Plat

2020 VT 15

In re Snyder Group, Inc. PUD Final Plat

No. 2019-122

Supreme Court of Vermont

September Term, 2019

February 21, 2020

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 S. Durkin, J.

Matthew B. Byrne of Gravel & Shea PC, Burlington, for Appellants Snyder Group, Inc., Spear Meadows, Inc., 1350 Spear, LLC, and Gary Farrell.

Daniel A. Seff of MSK Attorneys, Burlington, for Appellees/Cross-Appellants Mary Scollins, Michael Scollins, Marley Skiff, Robert Skiff and the Pinnacle at Spear Homeowners Association.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned

¶ 1. REIBER, C.J. Applicant, the Snyder Group, Inc., which initially obtained approval from the City of South Burlington Development Review Board (DRB) to construct a planned unit development (PUD), appeals the Environmental Division's summary judgment rulings that the City's governing zoning bylaw concerning the transfer of development rights (TDRs) with respect to PUD applications does not comply with two subsections of the enabling statute and is unconstitutionally vague. Neighbors, as interested parties opposing the PUD, cross-appeal with respect to the Environmental Division's rulings that the TDR bylaw complies with three subsections of the enabling statute. We uphold the rulings challenged by neighbors, reverse the rulings challenged by applicant, and remand the matter for Environmental Division to enter summary judgment in favor of applicant.

¶ 2. The material facts are undisputed. In April 2017, applicant submitted a subdivision application to construct a PUD on a 25.93-acre parcel in the City's Southeast Quadrant Neighborhood Residential (SEQ-NR) Zoning District.¹ Applicant proposed to raze one single-family dwelling and to construct eighteen single-family dwellings, three three-unit multi-family dwellings, and ten two-family dwellings. The forty-eight-unit PUD proposal includes seventeen units of TDRs from a separate parcel known as the Bread and Butter Farm.

¶ 3. Following a public hearing, the DRB granted final plat approval in a twenty-two-page decision that reviewed PUD and site-plan standards and criteria. The DRB determined that the density of the proposed PUD complied with the City's governing land development regulations, including the regulations allowing TDRs for PUDs.

¶ 4. Neighbors appealed to the Environmental Division, arguing, in relevant part, that the City's TDR bylaw² violated its enabling statute and was unconstitutionally vague, rendering it invalid and unenforceable. In response to neighbors' and applicant's cross-motions for summary judgment, the Environmental Division ruled in a February 2019 decision that the TDR bylaw did not comply with two subsections of the enabling statute and was unconstitutionally vague. Summary judgment is appropriate "if the movant shows 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); see V.R.E.C.P. 5(a)(2) (providing, in relevant part, that rules of civil procedure are applicable inproceedings before Environmental Division except as otherwise modified). "The party opposing summary judgment is given the benefit of all reasonable doubts and inferences" with respect to the facts. State of Vt. Agency of Nat. Res. v. Parkway Cleaners, 2019 VT 21, ¶ 11, ___ Vt. ___, 210 A.3d 445 (quotation omitted).

¶ 5. Applicant appeals, challenging both rulings, and neighbors cross-appeal, arguing that the bylaw does not comply with any of the enabling statute's five subsections, in addition to being unconstitutionally vague. The City was a party in the Environmental Division proceedings but did not file a notice of appeal from the Environmental Division's rulings. Nevertheless, the City has filed two appellate briefs, the first one labeled an appellee's brief and the second one an appellee's brief "in Cross-Appeal." Even though the briefs were filed as appellee's briefs, they both take a position consistent with applicant's in support of the validity and constitutionality of the TDR bylaw and contrary to the Environmental Division's judgment.

¶ 6. Neighbors have filed motions to strike the briefs and dismiss the City's appeal. The City counters that it is not raising new issues but simply commenting on issues raised by the appealing parties. Because the City did not file a notice of appeal, there is no appeal to dismiss. For the following reasons, however, we grant neighbors' motion to strike the City's briefs. First, the City is not an appellee but rather a party aligned with applicant—the appellant in this appeal. See Appellee, Black's Law Dictionary (11th ed. 2019) (defining appellee as "party against whom an appeal is taken and whose role is to respond to that appeal, usu. seeking affirmance of the lower court's decision"); 16A C. Wright et al., Federal Practice and Procedure § 3950.7, at 498 (5th ed. 2019) ("In general parlance, a cross-appeal is one filed by the appellee against the first or only appellant. A separate appeal is an appeal filed by any party other than the first appellant or appellee."); see also Ark. Cty. v. Desha Cty., 27 S.W.3d 379, 382 (Ark. 2000) (striking utility commission's brief where commission "failed to file either a notice of appeal or cross-appeal andyet filed a brief [as an appellee's brief] advancing the appellant's arguments too late to give the remaining appellees an opportunity to respond").

¶ 7. Second, and more importantly, "[o]nce one party has filed a notice of appeal, other parties who have not joined in that initial notice of appeal must file their own notices of appeal if they wish to attack all or a portion of the judgment below and to be relieved of the consequences thereof." 16A Wright et al., supra, § 3950.7, at 499. The governing principle is that "any named party, without filing a separate or cross-appeal, may make or renew in the appellate court any available argument designed to preserve or justify that portion of the judgment favorable to that party," but a separate appeal or cross-appeal "is required if a party wishes to attack the judgment to enlarge the party's rights under the judgment or to lessen the rights of the party's opponent." Id.; see also Jennings v. Stephens, 135 S. Ct. 793, 798 (2015) ("[A]n appellee who does not cross-appeal may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." (quotation omitted)); Huddleston v. Univ. of Vt., 168 Vt. 249, 255, 719 A.2d 415, 419 (1998) ("An appellee seeking to challenge aspects of a trial court's decision must file a timely cross-appeal, unless, of course, the party was content with the final order below, leaving it nothing to appeal" (citation omitted)).

¶ 8. We recognize that our current appellate rules do not explicitly address situations such as this. See V.R.A.P. 3(c) (providing that parties may file joint appeal and proceed as single appellant or may file separate notices of appeal, which may be consolidated); V.R.A.P. 4(a)(6) (providing that once one party files timely notice of appeal, "any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this rule, whichever period ends later"); see also 16A Wright et al., supra, § 3950.7, at 507 ("The 14-day provision [in F.R.A.P. 4] is not limited to cross-appeals, and plainly encompasses appeals by other parties such as co-parties or third-party defendants."). Accordingly, the matter will be referred to the Civil Rules Committee to consider whether to propose anyamendments to the appellate rules. See, e.g., In re M.K.M.R., 199 P.3d 1038, 1040-41 (Wash. Ct. App. 2009) (applying appellate rule providing that court will grant relief to one of multiple parties on one side of case only if party has filed notice of appeal or been joined in appeal or "if demanded by necessities of the case"); see also 16A Wright et al., supra, § 3949.2, at 85 ("A number of courts set a requirement (or presumptive requirement) that parties on the same side of consolidated appeals file a joint brief.").

¶ 9. Before addressing the appealing parties' arguments, we set forth the relevant law. The enabling statute at issue in this case is 24 V.S.A. § 4423, entitled "Transfer of development rights." Section 4423(a)³ provides as follows:

In order to accomplish the purposes of 10 V.S.A. § 6301⁴, [municipal] bylaws may contain provisions for the transfer of development rights. The bylaws shall do all the following:

(1) Specify one or more sending areas for which development rights may be acquired.

(2) Specify one or more receiving areas in which those development rights may be used.

(3) Define the amount of density increase allowable in receiving areas, and the quantity of development rights necessary to obtain those increases.

(4) Define "density increase" in terms of an allowable percentage decrease in lot size or increase in building bulk, lot coverage, or ratio of floor area to lot size, or any combination.

(5) Define "development rights," which at minimum shall include a conservation easement, created by deed for a specified period of not less than 30 years, granted to the municipality under 10 V.S.A.chapter 155, limiting land uses in the sending area solely to specified purposes, but including, at a minimum, agriculture and forestry.

¶ 10. The key provisions of the TDR bylaw became effective in the early 2000s and were last updated prior to this case in 2016. Although the...