STATE OF VERMONT
ENVIRONMENTAL COURT
In re: Appeal of Gulli, et } Docket No. 4-1-01
al. } Vtec
}
Appeal of Dunnett, et al. } Docket No. 5-1-01
} Vtec
Order on Pending Motions
These are the remaining two appeals involving decisions of the
Development Review Board (DRB) of the Town of Ludlow regarding
approval of Phase I of Applicant= s Jackson Gore Project. In Docket
No. 4-1-01 Vtec, Appellant Nicholas A. Gulli and a group of other
Ludlow residents appealed from a November 2000 decision of the DRB
approving the Final Parcel Map. In Docket No. 5-1-01 Vtec, Appellant
George Dunnett and a group of other Ludlow residents appealed from
the same decision. Appellants represent themselves; Appellee-
Applicant Okemo Mountain, Inc. is represented by Lawrence G. Slason,
Esq.; the Town is represented by J. Christopher Callahan, Esq.
Mr. Gulli has moved for the Court to rule that the appeal is properly de
novo rather than on the record, even though the Town has adopted
the Municipal Administrative Procedure Act and has voted to proceed
on the record. The parties have provided the transcripts of the
hearings pertaining to the November 2000 decision at issue in this
appeal, and the documents constituting the application. It appears
from the quality of the transcripts that the Ludlow DRB proceedings
are being recorded so that the record is one from which a transcript
can properly be prepared. Accordingly, the Gulli group= s motion for a
ruling that the appeal is de novo is DENIED. If the appeal proceeds, it
may proceed on the record.
Phase I of Applicant= s Jackson Gore Project is a mixed use
recreational development, involving skiing and snowboarding facilities,
and a Planned Unit Development (PUD) of 120 acres, including a 117-
unit condominium hotel, associated commercial facilities, parking and
infrastructure. Applicant submitted a consolidated application to the
DRB requesting site plan approval, conditional use approval, PUD
approval and subdivision approval of the Phase I Jackson Gore Project.
The August 8, 2000 decision approved and described the layout of the
subdivision and PUD by reference to Map OA-2 contained within Exhibit
17 before the DRB and the Application for Subdivision (Exhibit 39
before the DRB) and its enlarged map (Exhibit 40 before the DRB).
See pp. 39 through 41 of the Notice of Decision found in Exhibit C to
the present motions. As a condition to the approval in the August 8,
2000 decision, the DRB required Applicant to submit for later DRB
approval a A Final Parcel Map@ showing the location of the acreages
already approved in the August 2000 decision as the 120-acre PUD,
within which the August 2000 approval designated in its written
description 48.84 acres of land for accessory uses and 71.16 acres of
land for open space, of which 20 acres are unrestricted land and 51.16
acres of land are to contain trails, paths and picnic areas. In the latter
area, the August 2000 decision required Appellee-Applicant to show
the location of walking trails, cross-country ski trails, bike paths and
picnic areas, with access directly from the so-called A day use@
parking lots. Appellee-Applicant submitted a A Final Parcel Map@ dated
October 4, 2000; the DRB held two hearings on the Final Parcel Map
and took action to approve this map on November 27 (or 30), 2000,
the decision on appeal in these two appeals..
The Court has already ruled that these two appeals do not reopen any
of the issues in the August 2000 permit decision. The scope of these
appeals is limited by the scope of the November 2000 decision
appealed from. It is apparent from a close reading of the August 2000
decision as found in the consolidated decision, Exhibit C, that the DRB
took all of its required approval action in the August 2000 proceedings.
However, because its approval contained a lengthy narrative imposing
conditions on Appellee-Applicant= s proposal, the DRB took the
reasonable additional step of having Appellee-Applicant submit a Final
Parcel Map showing not only the project as applied for, but with all of
the DRB= s conditions imposed. Therefore, the only questions that
could be before the Court in these appeals would relate to whether
Appellee-Applicant had accurately rendered the DRB= s decision into
map form.
Appellee-Applicant has moved to dismiss all the questions in the
Statements of Questions for both appeals, as beyond the scope of
these limited appeals. In particular, Appellee-Applicant argues that
issues relating to density calculation, modification of building height,
the DRB= s authority in connection with PUD applications, designation
of land uses, and determinations relating to the specific acreage
dedicated to accessory lands, restricted lands, and unrestricted lands,
were all decided in the August 2000 permit decision and hence are not
within the scope of the present appeal. Appellee-Applicant is correct,
and its motion to dismiss the questions, and hence the appeals, must
be granted.
The Appellant groups argue that the DRB could not approve a plat
under ' 380.3 of the Zoning Bylaws and 24 V.S.A. ' 4407(12) and '
4414 without holding a public hearing on the plat and without
previously having given the applicant preliminary approval to authorize
the preparation of the plat for the public hearing. First, ' 4414 is
permissive regarding preliminary plat approval. A DRB may grant
preliminary approval, but is not required to go through that step prior
to considering final plat approval of a subdivision, either alone or in
conjunction with approval of a PUD.
However, much more importantly, the Appellant groups are mistaken
in thinking that the Final Parcel Map was the final subdivision plat.
Rather, the August 2000 decision refers to Exhibit 40 before the DRB
as the final plat being considered by the DRB in that decision, and
refers to Map OA-2 (in Exhibit 17 before the DRB) as the plan of the
PUD.
The Final Parcel Map was simply a rendering in map display form of all
the conditions and requirements imposed in the August 2000 decision.
While the DRB may have imported some confusion into this process by
requiring that it be submitted to the DRB A for approval,@ it is evident
from reading the complete DRB decision and its associated voluminous
exhibits that the submission for approval was simply so that the DRB
could determine whether its decision had been accurately rendered
into map display form. The submission of the Final Parcel Map did not
reopen the already-approved elements of the application on which the
DRB had made elaborate and careful findings and for which it had
imposed detailed requirements and conditions.
Accordingly, the questions presented in both Appellant groups=
Statements of Questions are beyond the scope of these appeals, and
are hereby dismissed. The appeals must therefore be and they hereby
are DISMISSED. If Appellee-Applicant wishes to prepare a separate
judgment order pursuant to the amendments to V.R.C.P. 58, it may do
so.
Done at Barre, Vermont, this 12th day of December, 2001.
___________________
Merideth Wright
Environmental Judge