DRB Ruling Reversed

Reading the Vermont Environmental Court’s ruling on the Sunset Hill controversy, it is hard to avoid the conclusion that Kevin Blakeman should get a permit to build his apartments—get it soon and without disabling conditions.

Environmental Judge Meredith Wright’s forceful opinion declared that the Randolph Development Review Board, in its decision last October, had mis-used the site plan review process to deny a permit to a development that is permissable under the zoning ordinance.

She also observed that the DRB had unduly relied on selective citations from the Town Plan, referencing passages that might support its conclusion but not others that pointed to contrary goals. For instance, the majority did not refer to the portions of the Town Plan that recommended affordable housing.

At a more basic level of zoning law, Judge Wright referenced the large body of law that declares that town plans should not be used to deny permits. The reason for that is precisely because plans are general documents dealing with many different goals, some of which may be in conflict with others. In most circumstances only the zoning ordinance—a duly-enacted law—should be used to deny permits, Judge Wright reminded the DRB. And in Randolph, the zoning ordinance seems clearly to permit an apartment house in the zoning district on Sunset Hill.

The DRB, notably, was split 4-3 on the Blakeman case, and for the first time in memory the minority of three members wrote their own dissenting opinion, explaining why they disagreed with the majority. Their dissent is in agreement with many of Judge Wright’s statements, although they, too, cited the Town Plan frequently. They simply focused on different parts of the plan than the majority had cited.

The judge was particularly critical of the DRB finding that even though the property is within one zone, it should "more properly" be in a different one. That kind of detemination is clearly not within the power of the DRB, however, and Judge Wright referred to it as second-guessing the town zoning and plan.

Because this DRB hearing was "on the record," Judge Wright had access to all testimony that the board had heard, and reportedly listened to tapes of the hearings. In her ruling, she declared that the decision "is not supported by substantial evidence in the record as a whole." In other words, regardless of the DRB’s arguments, their conclusions were not based on the weight of evidence presented at the hearing.

Should the DRB re-open the issue in an attempt to find new evidence, it would do damage to its necessary reputation for even-handedness. Such a procedure would look like a fishing expedition to find evidence to support a foregone conclusion.

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As to the merits of the apartment proposal, family housing is not so very unusual in the countryside, even on roads where most houses are single-family homes, as all of them are on Sunset Hill. On just such a road in Braintree, many years ago, an old farmhouse was subdivided and added onto to make six apartments. This didn’t seem to negatively impact the others on that road one whit. On the other hand, the six apartments have been providing beautiful living spaces for a succession of young couples, small families, and retired people, looking out their windows to cornfields and mown hay.

Some people like to live in a village, some like the countryside. But you shouldn’t HAVE to live in a village in order to live in an affordable apartment, and that’s why the zoning ordinance was written the way it was.