In re Greenpeak Estates

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, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
 
                                No. 86-413
 
                                                 Supreme Court
 
In re Green Peak Estates                         On Appeal From
                                                 Environmental Board
 
                                                 February Term, 1989
 
Lawrence H. Bruce, Jr., Acting Chairman
 
Abell, Kenlan, Schwiebert & Hall, P.C., Rutland, for appellant
 
Witten, Saltonstall & Woolmington, P.C., Bennington, for appellee
  Bennington County Regional Commission
 
Jeffrey L. Amestoy, Attorney General, and Mark J. Di Stefano, Assistant
  Attorney General, Montpelier, for appellee Agency of Natural Resources
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley, and Morse, JJ.
 
 
              GIBSON, J.  Green Peak Estates, Inc., a real estate
development corporation, appeals from the denial of Act 250 approval for
the construction of Phase II and Phase III of its residential development
in the town of Dorset.  We affirm.
              In October of 1982, Michael Bickford, a Connecticut real
estate developer, was shown a 374-acre tract of land in Dorset by a
realtor. Bickford hoped to subdivide the land for residential purposes,
and he returned to Vermont on weekends over the next several months to do
research and to look at other properties in Dorset and neighboring towns.
As part of his research, he familiarized himself with Act 250 and the town
plan, and he spoke with members of the Dorset Planning Commission and the
district Act 250 coordinator.  Bickford also had topographic, road, and
soil studies of the subject land prepared.  In March of 1983, Bickford
formed Green Peak Estates, Inc., with himself as president and sole
stockholder; the corporation purchased the tract of land.
              Although the town of Dorset has no formal review procedures
for proposed subdivisions, Bickford continued to meet with the members of
its Planning Commission while he developed a master plan for Green Peak
Estates. On three occasions, Bickford attended Planning Commission
meetings at which he presented his overall "conceptual development plan"
and explained that it was to proceed in three stages.  He also presented
details of his plan for Phase I of the development.
              In September of 1983, Bickford asked the Planning Commission
for a letter certifying compliance with the town plan.  On September 21 of
that year, the chairman of the Commission notified Bickford by letter that
the Commission had passed a resolution to the effect that Phase I of the
development plan was generally in conformance with the town plan.  The
chairman noted some concerns, however, regarding any development above
2000 feet in elevation.
              In September of 1983, Green Peak filed an application for a
land use permit with the District Environmental Commission.  The project
was described as "a land subdivision for residential, detached homes on a
400 acre site," and the application stated that it was for "the first of
several phases to improve the land with roads, utilities, septic fields,
and minor landscaping."  The application also indicated that nine lots
were planned. Green Peak attached a supplemental half-page document
entitled "Project Description" that provided further details regarding
Phase I and some general observations as to acreages and elevations
associated with Phases II and III.  Another attached exhibit, labeled
"Conceptual Development Plan," was a drawing of the 400 acres divided into
the three phases.  Phase I and much of Phase II were laid out on this
drawing, but only an access road was sketched out in the area designated
as Phase III.
              After notice and hearing, the Commission issued a written
decision, prefacing its Findings of Fact and Conclusions of Law by noting
the subject matter of the permit application:
            [A] project generally described as the subdivision of
          33 acres of a 400+/- acre tract of land into 9 single
          family residential lots. . . .  The proposed project
          would be constructed in three phases on 300+/- acres of
          the 400+/- acre tract.  Phase I includes 33 acres with a
          total of nine lots.  Phase II would develop 150+/- more
          acres;  Phase III would access an additional 100 acres
          up to 2500 feet in elevation . . . .  This application
          requests approval of Phase I only.
Among other aspects of its Act 250 analysis, the Commission concluded that
the project conformed with the "local or regional plan," observing first
that the Dorset Planning Commission had indicated conformance with the local
plan and noting further that:
            The Bennington County Regional Planning Commission has
          indicated that the project is located in what the plan
          designates an "intermediate upland area" because it is
          between 1000' and 2500' elevation.  The plan encourages
          open air uses and recommends avoiding development of
          slopes in excess of 20% while recognizing that develop-
          ment on slopes between 10% and 15% requires careful
          management, especially for erosion control and waste-
          water disposal.
 
The Commission issued the permit on March 15, 1984.
     On June 21, 1985, Green Peak applied for Act 250 approval of Phases II
and III of the development.  Again, the three phases were discussed in the
application.  Initially, approval was sought only for the twenty residential
lots planned for Phase II, and the application stated that approval of Phase
III's eight lots would be sought later.  An amended application was sub-
mitted on the same date, however, on which the words "Phase II and Phase
III" were handwritten and the number of lots was changed from twenty to
twenty-eight.
     Soon after this application was filed, the Dorset Planning Commission
unanimously adopted a resolution stating that "in the opinion of the
Planning Commission, Phase II of the Green Peak Estates development does not
conform in important respects to the Town Plan."  The Planning Commission
referred specifically to the town plan's objective of keeping rugged and
poorly accessible mountain and forest areas free from development.
     On November 1, 1985, the District Environmental Commission denied the
permit application with respect to both Phase II and Phase III.  The sole
ground for denial was Criterion 10 of Act 250, that is, that the proposed
development failed to conform with either the town or the regional plan.
The Commission also imposed certain conditions under other Act 250 criteria.
     In its appeal to the Environmental Board, Green Peak initially claimed
error with respect to both the Commission's denial of the permit and the
conditions it imposed.  It later sought to withdraw its appeal with respect
to the conditions.  Other parties to the appeal objected, however, and the
Board refused permission to withdraw those issues.  The Bennington County
Regional Commission, appearing as a party under statutory authority, asked
that the Environmental Board first consider whether Criterion 10, conform-
ance with the town or regional plan, was met.  In the absence of objection,
the Board deferred action on the other Act 250 criteria and held a de novo
hearing solely on the issue of compliance with Criterion 10.  The Board
subsequently denied the permit application on the ground that Phases II and
III did not conform with either the town or regional plan.
                                    I.
     Under Criterion 10 of Act 250, a proposed subdivision or development
must be "in conformance with any duly adopted local or regional plan."  10
V.S.A. { 6086(a)(10).  Where both a local and a regional plan are relevant
to issues raised by a particular project and they are not in conflict, the
legislature has dictated that the provisions of the regional plan are to be
given effect.  24 V.S.A. { 4348(h)(1).  Where the plans do conflict, the
regional plan controls only if it is demonstrated that the project under
consideration would have a substantial regional impact.  Id. { 4348(h)(2).
     The land in question is denominated "Intermediate Uplands" by the
Bennington County Regional Plan, { 5.72.  This section includes the
following observations:
            Intermediate uplands . . . are generally found outside the
          rural areas and below the 2500' elevation.  This area is
          generally characterized by grades in excess of 20%, absence
          of improved roads, and the absence of permanent structures
          for year-round or sustained use.
In a policy statement dealing with residential development, { 5.8 of the
plan states: "Residential development should be carefully planned in areas
where the natural slopes are greater than 15%.  On slopes greater than 20%,
residential development should not be permitted."
     The Dorset Town Plan includes the corresponding objective of
"[k]eep[ing] the rugged and poorly accessible mountain and forest areas free
from development, reserved for forestry and other uses appropriate to their
character."
     The Board concluded that these provisions from the two plans are not in
conflict.  Although Green Peak asserts that the town plan alone should be
considered, it does not challenge the Board's conclusion that no conflict
exists.  The analysis under Criterion 10, therefore, properly begins with
consideration of the regional plan.
     The Board made specific findings, which are not challenged by Green
Peak, pertaining to the slope of the proposed development, noting, for
example, that of the twenty proposed lots in Phase II, "slopes appear to
exceed 20% over more than one-half the area of at least 11 lots."  Finding
No. 9 summarizes this evidence:
          Thus, with the exception of the southerly portion of
          Phase III, the entire project area is characterized by
          slopes which exceed 20%.  Those areas scattered
          throughout the site which do not exceed 20% slopes fall
          within the 15 to 20% slope category and only a very
          small portion of the site consists of slopes of less
          than 15%.
Given the specific policy in the regional plan against residential
development on slopes exceeding twenty percent, the Board's findings are
sufficient to support its conclusion that the project does not conform to
the plan.  Cf. In re Zoning Permit of Patch, 140 Vt. 158, 167, 437 A.2d 121,
125 (1981) (trial court's ruling that proposed landfill failed to conform to
regional plan in Act 250 proceedings held erroneous where evidence of
nonconformance was insubstantial and regional plan encouraged sanitary
landfill refuse disposal).
     Green Peak contends, however, that the plan neither defines
"residential development" nor indicates whether all development is to be
excluded from such slopes.  With respect to the definitional argument, we
note that the permit application itself designates the project as a
"residential subdivision."  The developer's second argument is predicated on
the assertion that only portions of each lot have grades in excess of twenty
percent, and that the actual structures could be built on the less steep
areas.  Given the natural irregularity of the state's surface, this is
likely to be true of any area that includes twenty percent slopes.  We
believe that the Board's commonsense interpretation of the plan's policy on
this point is consistent with the overall approach to use of the region's
intermediate uplands.
     The Board also based its decision on other more general policies
enunciated in the regional plan that it determined to be in conflict with
the proposed development. (FN1)  Green Peak argues that these policies are so
abstract that "conformance" with all of them as apparently required by
Criterion 10 of Act 250 is impossible and cannot be what the Legislature
intended.  Because we affirm the Board's decision on the narrow ground that
the project failed to conform to the "slope" provision of the regional
plan, we do not consider Green Peak's grievances over the more general,
abstract policies in the plan.  Similarly, we need not address the Board's
determination that the project deviates from the regional plan's
recommendations for development in urban, village, and rural residential
areas and for design of access roadways.  Our holding also renders
consideration of the Dorset Town Plan unnecessary. (FN2)
                                    II.
     Green Peak maintains that the Regional Planning Commission is estopped
from asserting that Phases II and III do not conform with the regional
plan. (FN3)  This argument is based on the following propositions: that the
Commission knew the ultimate scope of the subdivision at all times; that it
possessed expertise concerning the meaning and effect of the regional plan;
that Mr. Bickford was unaware of any nonconformance with the plan's
policies; and that Bickford relied upon the Commission's lack of objection
to the Phase I permit application to his detriment by proceeding to make
expenditures in anticipation of approval of the other phases.
     Similarly, Green Peak maintains that the District Environmental
Commission was estopped from denying approval of Phases II and III after it
had issued a permit for Phase I of the project with full awareness of the
other phases.
     Estoppels against government agencies "'are rare and are to be invoked
only in extraordinary circumstances.'"  In re Conway, No. 88-465, slip op.
at 4 (Vt. Sept. 22, 1989) (quoting In re McDonald's Corp., 146 Vt. 380,
383, 505 A.2d 1202, 1203-04 (1985)).  We agree with the Board that no
estoppel has been established on this record.
     It is clear from the record that Bickford's initial permit application
-- and the District Commission's subsequent approval -- related solely to
Phase I of the subdivision.  The application explicitly stated that "[t]his
application is for the first of several phases," and it referred to only
nine lots.  While an overall "project description" and a drawing of the
project labeled "conceptual development plan" were attached, the plan gave
details for Phase I only; for Phase III, the drawing showed nothing more
than a sketched access road.  The Commission's Findings, Conclusions, and
Order stated expressly that the application sought approval of Phase I
only.  We agree with the Board, moreover, that none of the Commission's
findings indicated either direct or tacit approval of the overall develop-
ment plan.
     To the extent that the Regional Planning Commission failed to object to
the Phase I permit, "'silence without knowledge works no estoppel.'"  Laird
Properties v. Mad River Corp., 131 Vt. 268, 282, 305 A.2d 562, 570-71 (1973)
(quoting 31 C.J.S. Estoppel { 88, at 495).  The record includes no
suggestion that the Regional Commission was aware of any facts relevant to
the issue of conformance as it related to Phases II and III.   In any event,
the Regional Commission was not silent; instead, it sounded a clear warning
that the project was located in an "intermediate upland area" and that the
regional plan encourages open-air uses in such areas and recommends avoiding
development of slopes in excess of twenty percent.  The District Commission
incorporated this cautionary statement into its conclusions of law.
     Finally, as the Board noted, Bickford himself elected to restrict the
application to Phase I.  Under Board practice, he could have sought
"Masterplan approval" of a conceptual nature for the entire project at the
outset.  In the alternative, he could have invoked Board Rule 21 to secure
Criterion 10 review for the entire project.  "Courts will not predicate an
estoppel in favor of one whose own omissions or inadvertence contributed to
the problem."  Bennington v. Hanson-Walbridge Funeral Home, 139 Vt. 288,
294, 427 A.2d 365, 369 (1981).
                                   III.
     The applicant did not request that the District Environmental
Commission consider only Criterion 10; therefore, the Commission analyzed
proposed Phases II and III under each of the other Act 250 criteria.  In
the course of its analysis, it attached certain conditions to approval under
some of these criteria, and Green Peak appealed the imposition of these
conditions to the Board as well as the permit denial itself.  Subsequently,
after the time for filing an appeal had run, Green Peak sought to withdraw
its appeal as to the conditions by filing a motion to dismiss.  Other
parties objected, and the Board denied the motion.  Green Peak appeals that
denial.
     In considering the motion, the Board observed that, under its rules of
procedure, the parties before the Commission are not required to file
cross-appeals in order to participate in the de novo proceedings on appeal.
Hence, the Board reasoned, "another party may have appealed one or more of
these criteria had [Green Peak] not done so."  Accordingly, the Board
refused to dismiss the claims over the objection of those other parties.
     Where an appeal of a ruling by the Commission is taken to the Board,
the Board must "hold a de novo hearing on all findings requested by any
party."  10 V.S.A. { 6089(a).  In a de novo hearing, the tribunal hears the
matter as if no prior proceedings had taken place.  In re Poole, 136 Vt.
242, 245, 388 A.2d 422, 424 (1978).  Because all of the evidence must be
heard anew, id., it follows that each of the original parties has the right
to be heard.  Although Board Rule 40(d) provides that "[i]f timely notice of
appeal is filed by a party, any other party entitled to take an appeal . . .
may file a notice of appeal," this rule is permissive, at least where the
other party does not wish to address criteria other than those already
noticed.
     We hold that the Board correctly denied the motion to dismiss.  To hold
otherwise would encourage the filing of duplicitous appeals by parties
seeking to avoid situations like that presented here.
     Affirmed.
 
 
 
 
                                        FOR THE COURT:
 
 
 
                                        Associate Justice
 
 
 
 
FOOTNOTES: 
 

FN1.    The Bennington County Regional Plan enunciates four basic policies
to control growth in areas designated as "intermediate uplands."  First, it
declares that "[o]pen air uses such as hiking, cross country skiing,
snowmobile trails, horseback riding, and natural resource utilization such
as logging, sugaring, etc. are the most appropriate activities for this
planning area."  Second, "[p]ermanent improvements such as roads and
utilities that support sustained or year-round use should be discouraged."
Third, "[i]ntensive recreation activities such as group camp sites are
encouraged in areas with existing and suitable access."  Fourth, the plan
cautions that even those uses deemed "appropriate to intermediate uplands
. . . should be sensitive to severe soil limitations to avoid erosion."

FN2.    Because we do not reach the issue of conformance with the town plan,
we also decline to address the evidentiary questions that Green Peak raises
with respect to that issue.

FN3.     Green Peak maintains that the town is similarly estopped from
opposing the permit based on lack of conformance with the town plan.
Because our decision does not rely on the town plan, we need not decide this
issue.