In re Willowell Foundation Conditional Use Certificate of Occupancy (Andrew Higbee, Jr. and Sheryl Knauth, Appellants)

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@state.vt.us 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.

2016 VT 12

No. 2014-369

In re Willowell Foundation Conditional Use Supreme Court
Certificate of Occupancy
(Andrew Higbee, Jr. and Sheryl Knauth, Appellants)
On Appeal from
Superior Court,
Environmental Division

April Term, 2015

Thomas G. Walsh, J.

James W. Runcie of Ouimette & Runcie, Vergennes, for Appellants.

F. Rendol Barlow, Mark L. Sperry and Wanda Otero-Weaver of Langrock Sperry & Wool, LLP,
Middlebury, for Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris, Supr. J. (Ret.),
Specially Assigned

¶ 1. SKOGLUND, J. Willowell Foundation received a conditional-use permit to

build a community center and related improvements on a large plot of land in the Town of

Monkton. Neighbors challenge the permit. They argue the project violates a subdivision

condition mandating agricultural use, claim additional failings of Willowell’s application, and

contend the Superior Court, Environmental Division, erred in several ways in upholding the

permit approval. We affirm.

¶ 2. Willowell’s 229.8-acre plot is located in Monkton’s Medium Density Rural

Agricultural Zoning District (RA 2 MD) and is subject to the Unified Planning Document for the
Town of Monkton (2012), perma.cc/3X7Z-ZRYY [hereinafter UPD], which combines the

Town’s zoning regulations and subdivision regulations. Willowell’s plot is Lot 6 of the Perry

Flint & Hartshell Co. Subdivision, also known as the Hoag Farm Subdivision, which the

previous owners created prior to conveying the property to Willowell in 2005. The subdivision

also includes Lots 2 through 5. The Monkton Planning Commission approved and signed the

subdivision plat, which states: “Approved by resolution of the Town of Monkton Planning

Commission, Vermont, on the 28th day of May 2000, subject to all requirements and conditions

of said resolution.” All copies of the written resolution have disappeared, however, and thus the

resolution was not introduced into evidence. The minutes of the meeting at which the resolution

was passed are also lost. The plat, which was in evidence, outlines a “Building Envelope” on

each lot, with the following explanation: “Each lot contains one building envelope with a

proposed house site. All building envelopes have a set-back distance of 50 feet from lot lines

unless otherwise labeled.” The plat also depicts areas labeled “Agricultural Reserve,” one of

which covers a portion of Willowell’s property. On Willowell’s lot, the “Agricultural Reserve”

area seems not to overlap with the “Building Envelope,” although the envelope’s lines do not

appear to connect in at least one place, so the envelope is not a closed shape.

¶ 3. The proposed project includes Willowell’s offices, a preschool with two

classrooms, an art gallery, a multipurpose room, a library that incorporates an existing silo, a

teaching kitchen, a farm stand, a garden, a farm-manager house, a relocated and rebuilt partially

existing barn, a goat shed, two hoop houses, a widened existing access road, and a parking area.

Many of these structures would be located outside of the “Building Envelope.” Some would be

sited within the “Agricultural Reserve,” including the farm-manager house, garden, septic

system, and other infrastructure.

¶ 4. Since Willowell acquired the land in 2005, it has used the project site three days

per week to run the Walden Project, an alternative outdoor education program for high school

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students. Willowell also conducts small agricultural and educational programs on the project

site. The foundation plans to conduct similar programs in the proposed community center and

related improvements. Its mission is to foster connections between the arts, education, and the

environment through educational community activities that focus on agriculture.

¶ 5. For the RA 2 MD, where the project is located, the UPD lists permitted and

conditional uses. Permitted uses include “agricultural and forest uses,” “one family dwelling,”

and “public outdoor recreation”; conditional uses include “Art Gallery,” “Commercial Day Care

Center for Children,” and “Community Center.” For a proposed development that is “neither

specifically prohibited nor permitted nor listed” as a conditional use, the UPD provides that the

Monkton Development Review Board (DRB) may hear the application as one for conditional use

“when in the opinion of the DRB the proposed use does not detract from the traditional rural

agricultural character of the town, and is compatible with other uses” in the relevant zoning

district. Because some of Willowell’s proposed activities and structures are permitted uses in the

RA 2 MD, but others are either conditional uses or not listed, Willowell applied to the DRB for a

conditional-use permit, which necessarily entailed a site plan review. Among other review

criteria, the UPD requires that any proposed conditional use will not result in any undue adverse

effect on “[b]ylaws and ordinances in effect.”

¶ 6. The DRB approved Willowell’s application, subject to certain conditions. One

interested party, who was later dismissed from the case, appealed the decision to the

Environmental Division, and Willowell cross-appealed. Neighbors, appellants in this appeal,

first entered appearances at the Environmental Division. The Environmental Division upheld the

DRB’s conditional-use and site-plan approval, but voided all but one condition prescribed by the

DRB and required new modifications to the project. In concluding its decision, the

Environmental Division stated that Willowell shall file with the Monkton Zoning Administrator

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a revised site plan incorporating the required changes, and that, upon receipt of the revised site

plan, the Zoning Administrator shall issue a zoning permit consistent with the court’s decision.

¶ 7. Although the parties raised many issues in their briefing, motions, and arguments

before the DRB and the Environmental Division, neighbors raise only four issues on appeal:

(1) whether Willowell’s application was fatally incomplete because it did not submit certain state

permits with its conditional-use application; (2) whether the terms “Agricultural Reserve” and

“Building Envelope” as used on the Hoag Farm Subdivision plat are enforceable land-use

conditions restricting Willowell’s property, and, if so, whether the proposed project complies

with those conditions; (3) whether the Environmental Division erred in refusing to admit any

extrinsic evidence to explain the conditions that were imposed on the Hoag Subdivision at the

subdivision-approval meeting; and (4) whether the Environmental Division erred in directing the

zoning administrator to issue a zoning permit upon receipt of a revised site plan. We review

each claim in turn.

¶ 8. The first issue can be easily resolved: neighbors waived their argument regarding

state permits by not raising it at the Environmental Division, so we will not consider it. See

V.R.C.P. 76(e); V.R.E.C.P. 5(f); In re Hale Mountain Fish & Game Club, Inc., 2014 VT 54,

¶ 18, 197 Vt. 217, 103 A.3d 890; In re Garen, 174 Vt. 151, 156, 807 A.2d 448, 451 (2002).

¶ 9. Next, we must determine whether two phrases on the subdivision plat—

“Agricultural Reserve” and “Building Envelope”—impose land-use restrictions on Willowell’s

project. Although additional language on the plat states, “Approved by resolution of the Town

of Monkton . . . subject to all requirements and conditions of said resolution,” the parties agree

that no resolution or definition section applying to the plat exists. Under § 360(C)(4) of the

UPD, a proposed conditional use cannot result in any “undue adverse effect” on the “bylaws and

ordinances then in effect.” UPD § 360(C)(4). Each subdivision must conform to the UPD and

the goals of Monkton’s plan. UPD § 900(C). Willowell’s project must comply with the UPD,

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including any applicable subdivision permit conditions.* In re Robinson, 156 Vt. 199, 202, 591

A.2d 61, 62 (1991) (“A violation of a condition of a subdivision permit would be a violation of

the zoning ordinance itself.”).

¶ 10. Neighbors argue that Willowell’s project violates specific conditions of the

approved subdivision plan and, therefore, the project adversely affects Monkton’s bylaws and

ordinances. In particular, neighbors claim the plat phrases “Agricultural Reserve” and “Building

Envelope” impose land-use restrictions on Willowell’s lot. Neighbors assert the phrase

“Agricultural Reserve” requires land to be set aside for agricultural use. Thus, according to

neighbors, Willowell violated the condition by planning to build nonagricultural structures—

such as the farm-managers house and the swale—in the “Agricultural Reserve” area. Second,

neighbors claim that the “Building Envelope[s]” depicted on the plat are conditions restricting

new buildings to areas within the envelopes. Because portions of Willowell’s project extend

beyond the lot’s “Building Envelope,” neighbors contend Willowell’s project violates existing

subdivision conditions.

¶ 11. Willowell disputes neighbors’ interpretation of the subdivision plan. It contends

that the plat explicitly identifies the resolution of the planning commission as the location of any

conditions and, without the missing resolution, the phrases on the plat cannot be used to infer

permit conditions. Specifically, Willowell argues that “Agricultural Reserve” is a vague phrase

and, because land-use restrictions should be construed narrowly in favor of the landowner, any

ambiguity should be decided in Willowell’s favor. Willowell advances similar arguments to

refute neighbors’ claim regarding the “Building Envelope” on its lot. In addition, Willowell

notes that its deed to Lot 6 contained no restrictive language limiting structures to the building

*
We note that this appeal is confined to a review of Willowell’s conditional-use permit,
approved first by the DRB and subsequently the Environmental Division. The appeal neither
involves a proposed amendment to the subdivision, nor does it involve a private covenant or
easement. For that reason, our analysis rests solely on municipal and zoning precedent.
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envelopes; by contrast, the deeds for Lots 2 through 5 limit construction to the building

envelopes. Finally, Willowell claims that, even if the phrases are enforceable conditions, the

project is consistent with both permitted and conditional uses under Monkton’s bylaws.

¶ 12. The Environmental Division found that no existing document defined the

twoword phrases or established that the phrases were meant to be enforceable conditions. As a

result, the court held that no permit conditions existed and that Willowell did not need to comply

with the alleged conditions. We affirm and hold that the terms appearing on the subdivision plat

are not enforceable land-use restrictions.

¶ 13. We review the Environmental Division’s legal conclusions de novo, In re Grp.

Five Invs. CU Permit, 2014 VT 14, ¶ 4, 195 Vt. 625, 93 A.3d 111, but we will uphold those

conclusions if “they are reasonably supported by the findings.” In re Champlain Oil Co.

Conditional Use Application, 2014 VT 19, ¶ 2, 196 Vt. 29, 93 A.3d 139. This deferential

standard directs us to uphold the decision on the construction of a zoning ordinance unless it is

“clearly erroneous, arbitrary, or capricious.” In re Weeks, 167 Vt. 551, 554, 712 A.2d 907, 909

(1998). Moreover, even if controversial, conditional-use determinations must be upheld unless

clearly erroneous. Stevens v. Essex Jct. Zoning Bd., 139 Vt. 297, 303, 428 A.2d 1100, 1103

(1981).

¶ 14. In effect, neighbors ask us to circumvent the permit amendment process; as a

result, neighbors’ claim does not rest on solid procedural ground. In this case, the DRB could

review Willowell’s conditional-use application only based on the recorded bylaws and the

subdivision conditions in the application. See generally UPD §§ 360, 800. All parties agree that

no recorded document describes or defines the alleged subdivision conditions; absent such a

document, the Environmental Division held that the phrases on the plat could not be subdivision

permit conditions as a matter of law. In short, the original and approved subdivision permit

contained no conditions beyond the general zoning requirements in the UPD.

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 ¶ 15. Even if the purported subdivision conditions are appropriately before this Court,

however, the two-word labels on the plat are not sufficiently clear to constitute land-use

restrictions. We have previously found that restrictions should be explicit to provide notice of

all conditions imposed because “subsequent purchasers would lack notice of all restrictions

running with the property.” In re Kostenblatt, 161 Vt. 292, 299, 640 A.2d 39, 43 (1994) (citing

In re Farrell & Desautels, Inc., 135 Vt. 614, 616-17, 383 A.2d 619, 621 (1978) (“Conditions

imposed by a zoning board must be expressed with sufficient clarity to give notice of the

limitations on the use of the land.”)).

¶ 16. Analyzing our case law, the Environmental Division held that, absent an

accompanying document, Willowell had no clear notice the two-word descriptions on the plat

imposed enforceable conditions. We agree. As the Environmental Division noted, this Court

enforced the label “common land” on a recorded plat in In re N. Acres, LLC, 2007 VT 109, ¶ 12,

182 Vt. 618, 941 A.2d 240 (mem.). In doing so, this Court focused on the specific notice the plat

provided to the applicant by “explicitly” referencing homeowner regulations prohibiting

development on the “common land.” Id. Thus, the plat and accompanying regulations

sufficiently notified the applicant of applicable land-use restrictions.

¶ 17. By contrast, in In re Stowe Club Highlands, 164 Vt. 272, 277, 668 A.2d 1271,

1275 (1995), we declined to enforce a “cryptic description of [a] meadow as an ‘agricultural

easement’ ” because no recorded permit conditions defined or described the two-word phrase. In

reaching this decision, we reiterated the principle that enforcing implied permit conditions would

“ ‘impose a difficult if not impossible burden on interested parties to determine applicable

regulatory standards.’ ” Id. at 276 (quoting Kostenblatt, 161 Vt. at 299, 640 A.2d at 44.). We

concluded that enforcing the phrase “agricultural easement” as a condition read “far too much

into a two-word description on a map unaccompanied by permit conditions.” Id. at 277. These

cases demonstrate two-word plat labels without an accompanying document do not provide the

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“sufficient clarity” necessary to notify landowners of restrictions. Farrell, 135 Vt. at 617, 383

A.2d at 621.

¶ 18. A fundamental land-use principle supports this requirement: zoning ordinances

must be construed narrowly in favor of the landowner to minimize their hindrance on property

rights. Weeks, 167 Vt. at 555, 712 A.2d at 910; Town of Westford v. Kilburn, 131 Vt. 120, 126,

300 A.2d 523, 527 (1973) (“Because zoning ordinances are in derogation of common law

property rights, they are strictly construed.”). Strict construction ensures that a landowner

understands “what it can and cannot do with the land.” In re Handy, 171 Vt. 336, 347, 764 A.2d

1226, 1236 (2000) (citation omitted). And, to be enforced, the conditions must be specific

enough to provide a landowner with notice that his or her property rights are fettered. Farrell,

135 Vt. at 616-17, 383 A.2d at 621.

¶ 19. The facts in this case exhibit why our precedent requires clear restrictions on land

use. Under UPD § 260(A), permitted uses for Willowell’s property include “Agricultural and

forest uses,” and “Accessory Buildings.” The UPD’s definition of “Agricultural Use” covers

“farm structures” and its definition of “Accessory Buildings” comprises buildings “incidental

and subordinate to the principal building located on the same lot.” Based on these definitions,

Willowell could reasonably assume “agricultural reserve” meant reserved for the exact sort of

agricultural uses permitted in UPD § 260 and defined by the UPD. At the same time, Willowell

would have no notice that—as neighbors argue—the two-word phrase further restricted the

permitted uses of the land and precluded any building on the “best seven acres of farmland.” No

clear language contains this restriction. The plat merely contains two-word labels and pro forma

language directing prospective owners to a resolution that does not exist. Cf. N. Acres, LLC,

2007 VT 109, ¶ 12 (rejecting applicant’s contention that regulations referenced in plat did not

apply). Moreover, even if Willowell assumed the areas labeled “agricultural reserve” and

“building envelope” imposed heightened restrictions, Willowell’s remaining land could be used

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for permitted uses under our precedent and the UPD. See In re Stowe Highlands

Merger/Subdivision Application, 2013 VT 4, ¶ 12, 193 Vt. 142, 70 A.3d 935 (refusing to

interpret general designation of area on map to restrict other uses where not accompanied by

other permit conditions).

¶ 20. Given our precedent requiring clear land-use restrictions, we conclude the

Environmental Division did not abuse its discretion. We note that our holding does not

categorically prevent all plat labels from imposing land-use restrictions. It is possible that a plat

description could be specific enough to notify an owner of restrictions. Under the factual

circumstances before us, however, the Environmental Division properly determined that the two-

word phrases on the plat, without a clarifying document, did not impose subdivision conditions

on Willowell.

¶ 21. We next turn to neighbors’ argument that the Environmental Division incorrectly

refused to admit extrinsic evidence to explain the conditions imposed at the subdivision-approval

meeting. Because testimony offered at the subdivision-approval meeting pointed towards the

subdivision developers’ intent, neighbors claim the testimony should have been admitted to

clarify ambiguities in the plat phrases, specifically the term “agricultural reserve.”

¶ 22. The Environmental Division disagreed with this argument and distinguished

between relevant evidence pertaining to Willowell’s conditional-use application and irrelevant

evidence referring to the vanished subdivision resolution. Employing this distinction, the court

excluded neighbors’ extrinsic evidence based on lack of relevance because the testimony during

the subdivision-approval meeting referenced the missing resolution.

¶ 23. On appeal, Willowell adopts the Environmental Division’s position regarding the

relevance of the evidence. In addition, Willowell asserts that admission of the extrinsic evidence

would not change the outcome of the proceeding. Although we believe that the court incorrectly

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excluded the evidence based on relevance, we hold that the evidence’s admission would not

affect the result of this case.

¶ 24. The evidentiary issue is not one of relevance, but of ambiguity. Although we

evaluate decisions regarding admissibility of evidence for abuse of discretion, Griffis v. Cedar

Hill Health Care Corp., 2008 VT 125, ¶ 18, 185 Vt. 74, 967 A.2d 1141, we review decisions

regarding the ambiguity of a written document de novo. Main St. Landing, LLC v. Lake St.

Ass’n, Inc., 2006 VT 13, ¶ 7, 179 Vt. 583, 892 A.2d 931 (mem.). On one hand, Willowell

claims the plat’s two-word phrases, without an accompanying resolution, did not specifically

notify Willowell of restrictive subdivision conditions. On the other hand, neighbors believe the

circumstances surrounding the approval of the subdivision plan supported a different

interpretation of the phrases. As such, an ambiguity exists. See Isbrandtsen v. N. Branch Corp.,

150 Vt. 575, 579, 556 A.2d 81, 84 (1988) (noting ambiguity exists when “a writing in and of

itself supports a different interpretation from that which appears when it is read in light of the

surrounding circumstances, and both interpretations are reasonable”). Further, neighbors’

interpretation of the phrases depends on the testimony at the subdivision-approval meeting.

Under our case law, such extrinsic evidence is relevant. Kipp v. Chips Estate, 169 Vt. 102, 107,

732 A.2d 127, 131 (1999) (finding extrinsic evidence is relevant “only when, in combination

with the writing, it supports an interpretation that is different from that reached on the basis of

the writing alone”).

¶ 25. Moreover, Willowell’s theory of the case rests, to some extent, on the phrases’

ambiguity: the unclear plat descriptions cannot provide notice, therefore neighbors’ argument in

favor of imposing subdivision conditions should fail. We have previously found that a party

introducing a theory of ambiguity cannot then attempt to exclude extrinsic evidence clarifying

the ambiguity. Blanche S. Marsh Inter Vivos Trust v. McGillvray, 2013 VT 6, ¶¶ 28-29, 193 Vt.

320, 67 A.3d 943 (finding plaintiff could not “challenge the trial court’s consideration of

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extrinsic evidence to interpret the documents”). Given these circumstances, the Environmental

Division should have admitted the evidence as relevant.

¶ 26. There is, however, no indication that the improper exclusion of the evidence

affected a substantial right of the party. See V.R.E. 103(a) (“Error may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected.”). In

other words, neighbors cannot “demonstrate ‘prejudice’ from the erroneous ruling.” Jakab v.

Jakab, 163 Vt. 575, 580 664 A.2d 261, 263 (1995). Even if the developer’s testimony at the

subdivision-approval meeting indicated the intent that the terms on the plat mean as neighbors

have argued and that the DRB intended to impose additional conditions on the subdivision

permit, no evidence exists demonstrating the conditions were incorporated into the final (and

lost) resolution. This is particularly true in the zoning context because “conditions imposed by a

zoning board . . . cannot incorporate by reference statements made by an applicant at a hearing.”

Farrell, 135 Vt. at 617, 383 A.2d at 621 (citation omitted). Therefore, we hold that inclusion of

the extrinsic evidence would not affect the outcome of the case.

¶ 27. Finally, we address neighbors’ argument that the Environmental Division

improperly required the zoning administrator to issue a zoning permit upon receipt of a revised

site plan. According to neighbors, the order forces the zoning administrator to issue a zoning

permit even if the revised site plan contains a use that violates the UPD or existing subdivision-

approval permit. Willowell disputes this claim and argues that neighbors are attempting to

reargue the court’s substantive decision regarding the lost subdivision resolution. Moreover,

Willowell claims our case law indicates that the Environmental Division does not need to state

all potentially applicable zoning requirements for its order to be effective. The Environmental

Division found that a zoning administrator’s role is ministerial and reiterated that Willowell must

meet all the UPD requirements, even if the conditions were not contained in the order. We

agree.

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 ¶ 28. As the Environmental Division indicated, when a zoning administrator grants a

zoning permit, it is a ministerial act. See In re Verizon Wireless Barton Permit, 2010 VT 62, ¶ 3,

188 Vt. 262, 6 A.3d 713. Thus, if Willowell’s revised site plan satisfies the court’s order as well

as the UPD requirements, the zoning administrator will issue the permit. No discretion is

involved. Further, the Environmental Division’s order does not waive any additional or

necessary zoning conditions imposed by the UPD. See Kostenblatt, 161 Vt. at 300, 640 A.2d at

44 (“It is an unnecessary and unreasonable burden to impose on zoning boards the duty to state

all potentially applicable zoning requirements on every permit.”). The Environmental Division

was not required to list all of the potentially applicable regulations for the zoning administrator

to consider. Id. As a result, the Environmental Division’s order was not error.

¶ 29. For the reasons described, we hold the following in response to neighbors’ claims:

(1) by not presenting the argument to the Environmental Division, neighbors waived their claim

regarding Willowell’s lack of state permits; (2) the terms “Agricultural Reserve” and “Building

Envelope” as used on the subdivision plat are not enforceable land-use conditions absent the

referenced resolution; (3) although we find that the extrinsic evidence offered by the neighbors

was relevant, the exclusion of the evidence did not affect a substantial right of neighbors; and

(4) the Environmental Division did not err in directing the zoning administrator to issue a zoning

permit on receipt of a revised site plan.

Affirmed.

FOR THE COURT:

Associate Justice

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