In re MBL Associates

In re MBL Associates  (96-110); 166 Vt. 606; 693 A.2d 698

[Filed 6-Mar-1997]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 96-110

                            NOVEMBER TERM, 1996


In re MBL Associates                 }     APPEALED FROM:
                                     }
                                     }
                                     }     Environmental Board
                                     }
                                     }
                                     }     DOCKET NO. 4C0948-EB


       In the above-entitled cause, the Clerk will enter:

       The Town of Shelburne Selectboard and the Shelburne Planning
  Commission (Town) appeal the order of the Environmental Board granting
  developer MBL Associates (MBL) an Act 250 permit to construct a 221-unit
  housing project in South Burlington.  The Town argues the Board erred in
  concluding that the project conforms with the Chittenden County Regional
  Plan, as required under Act 250.  We affirm.

       In January 1994, MBL filed an application for an Act 250 permit with
  the District Environmental Commission to build a housing development in
  South Burlington near the Shelburne town line.  The development would be
  located on a 202-acre tract of land -- 154 acres on the west side of Dorset
  Street and 48 acres on the east side of Dorset Street.  All of the
  development, 161 single-family homes and 60 multifamily homes, would be
  built on 75 acres of the 154-acre tract, leaving the remaining 79 acres of
  the western tract and the entire 48-acre eastern tract undeveloped. 
  Municipal water and sewer lines for the project would be substantially
  extended south along Dorset Street to serve the project.  The Commission
  denied MBL a permit in April 1994.  MBL appealed to the Environmental
  Board, which, following motions to alter an initial permit, granted the
  developer an Act 250 permit in January 1996. This appeal followed.

       Before a land-use permit may be issued under Act 250, the Board or
  district commission must find that the project conforms with ten statutory
  criteria.  10 V.S.A. § 6086(a).  The tenth criterion requires a project to
  be "in conformance with any duly adopted local or regional plan." Id. §
  6086(a)(10).  The Town does not contest the Board's findings relative to
  criterion 10. Rather, the Town contends solely that the Board erred in
  concluding that the project conforms with the Chittenden County Regional
  Plan.  We will affirm the Board's conclusions if they are rationally
  derived from the findings and based on a correct interpretation of the law. 
  In re Killington, Ltd., 159 Vt. 206, 210, 616 A.2d 241, 244 (1992).

       The Board supported its conclusion on three grounds:  (1) that the
  project is an allowed use under the regional plan, (2) that none of the
  provisions in the regional plan calling for development in "growth
  centers," which encourage traditional village-town-country settlement
  patterns, are specific enough to deny MBL's permit, and (3) that the
  project complies with the plan under its "greater public good" exception. 
  The Town does not contest the Board's first determination that the project
  is an allowed use under the regional plan.  Although the area where the
  project would be located is designated as an agricultural area, the plan
  specifically includes "residential" as an allowed use in agricultural
  areas.

 

       The Town does contest the Board's second determination.  The Town
  argues that the Board should not have looked to the municipal zoning bylaws
  to determine whether the project satisfied the regional plan's density
  restrictions unless the Board found the regional plan's density
  requirements ambiguous.  We disagree.  The regional plan states that the
  intensity, type, and location of the region's future development are
  depicted on the Future Land Use Map and the Future Land Use Matrix, which
  take into consideration, among other factors, "the growth center concept." 
  Under "recommended residential density" for agricultural areas, the matrix
  indicates one unit per ten acres with clustering "or per local bylaws." 
  The Board therefore looked to South Burlington's zoning bylaws, which allow
  a maximum residential density of 1.1 units per acre.  As the project's
  overall density met this requirement, the Board concluded that the project
  was not prohibited under the plan.

       Provisions of a regional plan, like zoning ordinances, should be
  construed according to the ordinary rules of statutory construction.  See
  Houston v. Town of Waitsfield, 162 Vt. 476, 479, 648 A.2d 864, 865 (1994). 
  If the meaning of the plan is clear, it must be followed according to its
  express terms.  Id.  A project in an agricultural area conforms with this
  regional plan as long as it does not exceed the listed density of one unit
  per ten acres or the density prescribed in the applicable local bylaws. 
  This language is clear and unqualified, and creates no ambiguity.  Cf. In
  re Molgano, 163 Vt. 25, 30-31, 653 A.2d 772, 775 (1994) (if town plan is
  ambiguous, zoning bylaws determine conformance with plan).  All parties
  agree that the overall project density meets the South Burlington zoning
  requirement.

       The Town contends, however, that the sheer size of the development
  (221 units) triggers its designation as having a "substantial regional
  impact" under the plan, thereby altering otherwise-stated density
  limitations and requiring that it be located in a designated growth center.
  Looking to the regional plan, we agree that the project qualifies as having
  a substantial regional impact because it occurs outside a designated growth
  center and requires an Act 250 permit. But the plan's purpose for the
  substantial-regional-impact criteria "is to determine the applicability (or
  not) of the Regional Plan in state regulatory proceedings, primarily Act
  250 and Section 248."  We see nothing in the regional plan's provisions
  concerning substantial regional impacts that alters the plan's density
  limitations.

       The Town also contests the Board's conclusion that the regional plan
  is not specific enough to deny the project because nowhere in the plan is
  there a clear restriction such as a numeric limit on housing densities
  above a certain level outside the designated growth centers. The Town
  complains that the Board is inconsistent in that it has found other
  regional plans sufficiently specific to deny permits even though those
  plans did not contain numeric restrictions. We decline to engage in
  comparing the Board's interpretations of various regional plans.  The
  Board's decisions as to matters within its jurisdiction are treated with
  great deference.  In re Killington, Ltd., 159 Vt. at 210, 616 A.2d  at 244. 
  Upon reviewing the Board's findings and the applicable provisions of the
  plan, we agree that the project meets the density requirements under the
  zoning bylaws as allowed in the plan, that no other provision requires
  modification of this density, and that provisions directing development to
  growth centers are phrased in advisory, not mandatory, terms.  This is
  sufficient to uphold the Board's conclusion that nothing in the regional
  plan required denying MBL a permit.

       Nevertheless, the Town asserts that the Board erred in interpreting
  the provisions relevant to growth centers as advisory only.  It contends
  the Board wrongfully construed provisions phrased in terms of "should" as
  recommended, not mandatory, thus allowing the Board to conclude that the
  plan's provisions directing development to growth centers were ambiguous
  and lacked the specificity required to deny an Act 250 permit.  The Town
  cites our decision in In

 

  re Green Peak Estates, 154 Vt. 363, 368-69, 577 A.2d 676, 679 (1990), where
  we noted that a provision in the regional plan stating that residential
  development "should" not be permitted on slopes greater than twenty percent
  was a specific policy requirement.  There is, however, no indication in
  Green Peak Estates whether "should" was defined in the applicable regional
  plan or that the interpretation of "should" as permissive or mandatory was
  even at issue.  Here, the Board noted that the regional plan expressly
  defined "should" as "identifying that a requirement is encouraged but not
  mandated."  In addition, the Board considered, and rejected, arguments that
  the plan's definition of "should" ought to be interpreted as setting
  mandatory requirements. The Board thus concluded that none of the regional
  plan's provisions calling for residential development within growth centers
  clearly prohibit residential development outside such centers as long as
  the development meets the plan's density requirements.  We agree with this
  conclusion.

       In light of our decision, we need not address the Town's challenge to
  the Board's alternative conclusion that the project complies with the plan
  under its "greater public good" exception.

       Affirmed.




     BY THE COURT:



     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice

     _______________________________________
     Marilyn S. Skoglund, District Judge
     Specially Assigned