n D
7 7. MAR 2 6 2012
STATE OF VERMONT
SUPERIOR COURT - ENVIRONMENTAL DIVISION 7 VERMONT
7 _ 7 SUPER!OR CCURT
ENVIRONMENTAL DIVIS;ON
In Re Brandon Plaza Conditional 7 Docket No. 128-8-10 Vtec
. Use Permit
' Decision in On-the-Record Appeal
ln this on-the-record proceeding, a group of fourteen individuals (”Group Appellants”)
appeal a decision by the Town of Brandon Development Review Board (')the DRB”) granting a
conditional use permit to Brandon Plaza Associates, LLC (”Applicant”) for the construction of a -
commercial retail development in the Town of Brandon, Vermont involving a supermarket
parking lot, and related utilities Applicant cross~appeals, questioning the DRB's imposition of
conditions in the permit that require Applicant to reduce the size and scale of its proposed
development The 'l`oWn of Brandon (”the ToWn”) appears as an interested person in this v
' appeal 7 7 v t tr -
l Currently before the Court are principal and reply legal briefs from both Group
Appellants and Applicant. The Town has not submitted a brief. In issuing this Decision on the
merits of this on-the-record appeal from the DRB’s _decision, the Court has taken into account
the briefs submitted by the parties, the DRB’s decision of july 6, 2010 granting a conditional use
permit to Applicant, and the record from the proceeding beloW, as described in V.R.E.C.P.
5(h)(1)(A). The contents of this record have been agreed upon by all three ofrthe parties
involved in this appeal and further clarified by the Court in our August 5, 2011 ”Decision and
" Order On Pending Motions.” y ` n
ln this on-the~record dppeal, G'roup Appellants are represented by james A. Dumo`ni_:,5
Esq. and include james Leary, Kevin _Thorton, judy Bunde, Hanford Davis,- jeffrey Faber,
Maurice Racine, Philip Keyes, Beth Rand,l Helyn Anderson, AndreW Clive, Linda Stevvart, jeff
Stewart, jon Andrews, and Patt Cavanagh. Applicant is represented by Edward V.7 SchWeibert,
Esq_ and co-counsel David R. Cooper, b`sq. The ToWn is represented by james F. Carroll, Esq._
. . hack_grel_lp_d. 7
On August 29, 2009, Applicant submitted an application to the DRB for a conditional use
permit to construct a commercial retail development in the Town of Brandon, Vermont on four
parcels: 21 Nicl § in reaching findings and conclusions
regarding these requirements Without substantial evidence;
3) granting a conditional use permit Without making adequate findings of fact or conclusions of
law, g reaching such findings and conclusions Without substantial evidence, specific to the
reqniieinenie of ordinance § 1'03, § 302, end § 303; l
' 4) granting a conditional use permit for a project reduced in size and scale from that proposed
with no evidence about the traffic impacts from such a project; n t
5) approving a ”different version” of the project from What Applicant proposed;
6) relying upon ”hearsay information from non-testifying employees of .l_lannaford'Brothers”
about grocery store operations and'refusing to issue an order requiring the employees to
testify,' l
7) relying upon evidence based on the operation of Hannaford Brothers grocery stores but not
restricting the conditional use permit to a Hannaford Brothers grocery store;
l 7 8) relying upon the economic report and testimony offered by Mr Richard Heaps While
rejecting the testimony of Dr Nicholas Rockler,‘ _
9) relying upon testimony that the Vermont Agency of Transportation is making improvements l
to Route 7 but not imposing a condition in the permit that such improvements are required
before completion of the project; and _ .
10) relying on ’.'unspecified implied conditions to meet the standards of the ordinance.”
(Statement of Questions for Appeal by'Ap~pellants Leary et al., filed Aug. 23, 2010 (ein'phasis
omitted)). 7 n ' l n
b Applicant’ s Statement of Questions asks generally Whether the project it proposed
complies with all of the applicable criteria in the Ordinance, whether the DRB erred by IlOf
granting it a conditional use permit for the project as proposed, and Whether the DRB’S d€CiSiOh
vis supported by sufficient evidence Applicant's brief is limited to arguing that the Di\ B erred
by conditioning its approval on a reduction in the size and scale of its project and to responding
to the issues raised by Group Appellants.
I. Standard- of Review l _
ln an on-the-rec`ord appeal from a decision by. a municipal panel, our role as the
reviewing tribunal is similar to that of the Vermont Supreme C_ourtjwhen reviewing appeals
from administrative bodies. Tliat is, We do not take new evidence or complete our own
determination of the facts. lnstead, we`uphold the municipal panel’s findings of fact if they are
supported by substantial evidence in the record and review the municipal panel’ s legal ,
conclusions Without deference unless such conclusions are within their area of expertise See l_n
3
re Stowe Hi,thands Resort'PUD to PRDAQplicati@, 2009 VT 76, 11 7, 186 Vt. 568. ln examining
whether there is Substantial evidence in the record, We are not permitted to make our own
assessment Of the Credibility of Witness testimony or reweigh conflicting evidence in the record.
See ln re_Appeal Of LeilNov. 2004 term) (unpublished mem.);
Devers-Scott v. Office of Professional Regulation, 2007 VT 4{ if 6, 181 Vt. 248. We are simply to
inquire Whether the record includes relevant evidence that a ”_ reasonable person could accept . .
__ as adequate" Support. Devers~Scott 2007 VT 4, 11 6 (quoting'Braun_v. Bd. of Dental E>