Appeal of JAM Golf, LLC

Citation: Not availableDocket: 69-3-02 Vtec

Court: Vermont Superior Court; June 12, 2009; Vermont; State Appellate Court

Original Court Document: View Document

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In the case of JAM Golf, LLC v. City of South Burlington, JAM Golf, LLC appeals a decision by the Development Review Board (DRB) concerning a proposed ten-lot subdivision. The Vermont Supreme Court previously reversed a denial of the application, determining that two criteria from the South Burlington Zoning Regulations were unenforceable due to vagueness, particularly subsection 26.151(g), which lacked clear guidance for property owners and allowed arbitrary discretion in decision-making. The Court upheld subsection 26.151(l), which aligns PRDs with the City’s Comprehensive Plan, provided that the plan contains specific standards. However, it ruled that the application could not be denied based on natural resource protection due to ambiguities in the corresponding plan sections.

Currently, the appeal focuses on subsections (h) and (i) of 26.151, which require that the project does not adversely affect the area's scenic or natural beauty and that it provides adequate common open space relative to the development. The applicant contends that these subsections are also vague and lack the specificity needed to support a denial, echoing concerns previously raised by the Supreme Court regarding the potential for arbitrary interpretation and violation of due process rights. The analysis highlights the necessity for clear standards to avoid discrimination and ensure fairness in the application process.

Zoning ordinances are generally presumed valid, with courts intervening only when an ordinance is clearly unreasonable, irrational, arbitrary, or discriminatory. Courts uphold ordinances with general standards to prevent excessive discretion while avoiding unbridled discrimination. Zoning ordinances are interpreted like statutes, with courts assuming that drafters considered relevant precedents. The interpretation may involve historical usage to clarify vague phrases.

Specifically, subsection (i) of 26.151 requires the court to assess whether a proposed project ensures a convenient allocation and distribution of common open space and aligns with the City’s recreation plan. However, this subsection lacks definitive standards, making it difficult for the reviewing body to interpret "convenient." The absence of guidance on what constitutes convenient allocation and distribution could lead to arbitrary decision-making and fails to inform applicants of design expectations for a Planned Residential Development (PRD). Unless the meaning of "convenient allocation and distribution of common open space" can be drawn from other zoning provisions or external sources, 26.151(i) is rendered unenforceable due to its vagueness. The only other relevant provision, 26.153, pertains to the legal protection of open space associated with PRDs.

Approval of the location, size, and shape of open space under Section 26.153 is solely contingent on approval from the Design Review Board (DRB), with no further guidance on the phrase "convenient allocation and distribution" beyond what is outlined in Section 26.151(i). Additionally, Section 6.606, which addresses open space in the Southeast Quadrant zoning district, is not applicable to the current appeal because it pertains only to proposed developments in restricted areas, which the present application does not involve. Furthermore, Section 6.606 focuses on the location of open space rather than its allocation and distribution.

The South Burlington Subdivision Regulations also provide some open space requirements, specifically Sections 411 and 412.1. However, Section 411 relates to the quantity of open space rather than its allocation, and Section 412.1 pertains to the preservation of existing features without addressing allocation or distribution. The Commission's discretion is not guided by specific standards in these provisions, nor is there any external source providing clarity on "convenient allocation and distribution." 

The phrase is deemed standardless and vague, resulting in its unenforceability in this appeal. Under subsection (h) of 26.151, two determinations must be made: the proposed project must not have an undue adverse effect on the area's scenic or natural beauty and must be aesthetically compatible with the neighborhood. The phrase regarding "undue adverse effect" is consistent with Act 250 and has been interpreted through established case law, notably the Quechee test, which assesses whether a project is in harmony with its surroundings, paralleling the aesthetic compatibility requirement.

The determination of a project’s impact on its surroundings is assessed through several key factors: 

1. **Project Context**: Analysis of the project's location, including its urban, suburban, or rural setting, existing land uses, and topography.
2. **Design Compatibility**: Evaluation of the project's architectural style, scale, and mass in relation to neighboring structures and land use patterns.
3. **Material Suitability**: Consideration of whether the chosen colors and materials fit the local context.
4. **Visibility**: Assessment of where the project can be viewed from, including the duration of views based on viewer mobility.
5. **Impact on Open Space**: Determination of whether the project maintains or contributes to the loss of open areas.

If adverse effects are identified, the second phase involves the "Quechee test," which seeks to establish whether these effects are "undue" by answering three questions:

1. Does the project violate community standards meant to protect aesthetics or natural beauty?
2. Does it offend the sensibilities of the average person, being out of character with the area?
3. Has the applicant neglected reasonable measures to align the project with its surroundings?

An affirmative response to any question indicates an "undue" effect. The Quechee test has been upheld in various Act 250 cases, providing a framework for assessing potential adverse effects on scenic or natural beauty and aesthetic compatibility. This test is relevant to the application of zoning regulations, as both employ similar language regarding aesthetic impact.

Ultimately, the ruling concludes that a specific criterion (26.151(i)) is unenforceable, and the court will assess the application under a different criterion (26.151(h)) using the Quechee methodology. The decision was made by Environmental Judge Merideth Wright on June 12, 2009, in Berlin, Vermont.