Green Mountain Dog Camp, LLC - Decision on Motions

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
32 Cherry St, 2nd Floor, Suite 303, Docket No. 24-ENV-00005
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Green Mountain Dog Camp, LLC DECISION ON MOTIONS

In this action, Janine Mannien d/b/a Green Mountain Dog Camp, LLC (Applicant) appeals a
December 28, 2023 Decision by the District 5 Environmental Commission (District Commission)
denying her application for a permit amendment of Land Use Permit #5W0914 (LUP #5W0914) for
an as-built dog training and doggie daycare at her property located at 2545 Winch Hill Road, Roxbury,
Vermont (the Property). Presently before the Court are cross-motions for summary judgment filed
by Applicant, the Vermont Natural Resources Board (NRB), and interested persons Jean Henry and
Casimir Vaicaitis (together, Neighbors).
Legal Standard
To prevail on a motion for summary judgment, the moving party must demonstrate “that
there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5(a)(2). When considering a
motion for summary judgment, the nonmoving party receives the benefit of all reasonable doubts and
inferences. Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356. When considering cross-
motions for summary judgment, the Court considers each motion individually and gives the opposing
party the benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint Commc’ns,
Inc., 2009 VT 59, ¶ 5, 186 Vt. 332. In determining whether there is a dispute over any material fact,
“we accept as true allegations made in opposition to the motion for summary judgment, so long as
they are supported by affidavits or other evidentiary material.” White v. Quechee Lakes Landowners’
Ass’n, Inc., 170 Vt. 25, 28 (1999) (citation omitted); V.R.C.P. 56(c)(1)(A).

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Statement of Questions
Applicant raises three Questions in her Statement of Questions. They ask:
1. When balancing the seven finality and flexibility factors of Act 250
Rule 34(E)(4)(b)(d)(e), do the factors weigh in favor of granting
flexibility to amend the permit to allow for the [Project’s] activities?
2. Does the [Project] have an undue adverse effect, or a significant or
destructive impact on necessary wildlife habitat, under 10 VSA
6086(a)(8)(A)?
3. Do the factors under 10 V.S.A. 6086(a)(8)(A)(i-iii) weigh in favor of
finding no undue adverse effect on necessary wildlife habitat under Act
250 Criterion 8(A)?
Statement of Questions (filed on Mar. 19, 2024).
Factual Background
We recite the following facts solely for the purposes of deciding the pending cross-motions.
These facts do not constitute factual findings because factual findings cannot occur until after the
Court conducts a trial. Fritzeen v. Trudell Consulting Eng’re, Inc., 170 Vt. 632, 633 (2000) (mem).
Additionally, we note that Applicant did not respond to the NRB or Neighbors’ statements of
undisputed material facts. The NRB and Neighbors, in turn, did not reply to each other’s statements.
When a party fails to address another party’s factual statement, in whole or in part, the Court may,
among other things, “consider the facts undisputed for the purposes of the motion” or “grant
summary judgment if the motion and supporting materials— including the facts considered
undisputed—show that the movant is entitled to it . . . .” V.R.C.P. 56(e)(2)–(3). With this in mind,
the Court finds the following facts undisputed for the purposes of the pending motion unless
otherwise noted based on the parties statements of undisputed material facts, and responses thereto
as well as V.R.C.P. 56(e)(2), and the record before the Court pursuant to V.R.C.P. 56(e)(3).
1. Janine Mannien owns property having an address of 2545 Winch Hill Road, Roxbury,
Vermont (the Property).
2. Ms. Mannien does business as Green Mountain Dog Camp, LLC (together, Applicant).
3. Applicant operates a dog training and daycare facility at the Property.
4. Applicant’s relevant operations include the dog daycare and training use along with “three,
6.5-foot tall, plastic, fenced dog runs, 5 kennels, an 8’x12’ lean-to for shelter during storms and small
heat source in winter, and a 625 square foot dog training center with grooming tub inside a converted
garage.” NRB Ex. 1 (together, the Project).
5. The Property consists of two lots, Lots 8 and 9 of the Winch Hill Subdivision.

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6. The Winch Hill Subdivision was created by Land Use Permit (LUP) #5W0914, issued
February 18, 1987.
7. The Property is subject to LUP #5W0914.
8. Condition 1 of LUP #5W0914 states:
The project shall be completed and maintained as set forth in Findings
of Fact and Conclusions of Law 5W0914, in accordance with the plans
and exhibits on file with the District Environmental Commission, and
in accordance with the conditions of this permit. No changes shall be
made in the project without written approval of the District
Environmental Commission.
NRB Ex. 2 (LUP #5W0914).
9. Condition 2 reiterates that the permit runs with the land and will be binding on all assigns and
successors in interest. Id.
10. Condition 12 states that:
Prior to the sale of any lots, the permittee shall work with the
Department of Fish and Wildlife to finalize the forestry management
plan described in the Exhibits and attached Findings of Fact. The
completed plan shall be binding on all affected lot owners during the
life of this permit and any proposed changes in the plan shall be subject
to prior Commission review and approval in the form of an amended
land use permit.
Id.
11. In the Findings of Fact and Conclusions of Law, the permit states:
This 230± acre tract is characterized by overgrown pastures and
woodlands. The Department of Fish and Wildlife [has] identified
significant deer wintering habitat on substantial portions of the tract
(Exhibits 8 and 18) and during the hearing the Department indicated
that lots 5, 6, 7, 10, 11 and 23 were most affected. The applicant is to
be applauded for its efforts to preserve these habitat and forestry
resources by placing conservation easement [sic] over 60% of the
proposed subdivision, restricting activity to limited forest
management. (Exhibits 3 and 16). A draft of the conservation
easement is set out on Exhibit 13 and includes lots 1, 2 and 5 through
15. An actual forest management plan will be devised with input from
the Department and this Commission shall be provided a copy of the
final plan for its review and concurrence. The Commission notes that
there will not be direct public access to the conservation zones through
the developed portions of the lots but that such access may continue
from adjoining properties for hunting and recreational purposes. In
closing, the Commission indicates that the forest management plan is
an integral part of its affirmative findings under this criterion [8] as to
habitat and under 9(C) as to forestry soils. This plan shall be binding

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during the life of the land use permit and any changes in the plan, as a
result of proposed actions by a lotowner(s) shall be subject to prior
Commission review and approval by means of an amended land use
permit.
Id. at 11 (emphasis added)
12. LUP #5W0914, through Condition 1, incorporates exhibits provided in support of the
subdivision application.
13. Exhibit 3 to LUP #5W0914 is an overview of the subdivision application which includes the
following representations:
Over 60% of the subdivision will have a conservation easement placed
on it which will restrict activity to limited forest management. . . . A
deer wintering area has been identified on the lower western side of
the subdivision. This area will be included in the forest management
zone.
NRB Ex. 3 at 1.
14. The subdivision application additionally represented that “[o]nly limited tree cutting will be
permitted in accordance with a forest management plan to be provided [sic] each land owner.” NRB
Ex. 4 at 3.
15. This limitation on construction and activities within the forest management zone was
reiterated in a letter to the Agency of Natural Resources (ANR) regarding the subdivision. NRB Ex.
6.
16. With respect to deer wintering areas, the subdivision application represented that the identified
area “will be protected through the use of the conservation easement and the restrictions on activities.”
Id. at 4.
17. The subdivision application made numerous representations to the District Commission
regarding the limitations on tree cutting and erection of structures within the conservation areas and
the protection of deer wintering habitat.
18. The subdivision application also included proposed deed restrictions for the subdivided lots.
These restrictions included:
a. “No temporary structures shall be constructed upon any lot in the
development.
b. “All dogs must be confined or leashed.”
c. “No construction of any kind will be permitted in [the forest
management conservation easement] zone.”
NRB Ex. 11.

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19. Applicant’s deed references the conservation easement (the Conservation Easement) and its
terms, as recorded in the Town of Roxbury Town Clerk’s Office. NRB Ex. 10; Applicant Ex. O.
20. The Conservation Easement states that “forest management will be conducted in accordance
with the guidelines put forth in the Winch Hill Forest Conservation Zone Management Plans
developed by the Patten Environmental Trust and the Vermont Department of Fish and Game.”
NRB Ex. 11.
21. The conservation easement further restricts use, alteration, and construction in the easement
as follows:

Recreational activities such as hiking, cross-country skiing, picnicking
and hunting are encouraged. The use of snowmobiles and all-terrain
vehicles shall be restricted to existing trails. Construction and
maintenance of new trails is permitted only after consultation, review,
and approval in writing by the Patten Environmental Trust and
officials of the Vermont Fish and Game Department.
Timber and brush cutting is allowed only in accordance with the Forest
Management Plan on file with the Roxbury Town Clerk and held by
each lot owner. No alteration or construction within the Forest
Conservation Zone, except as specified in the Forest Management
Plan or otherwise provided for herein, is allowed.
***
Constructing and maintaining foot trails for recreational purposes is
allowed. The location of such trails is subject to approval in writing by
the Patten Environmental Trust.
Id.
22. Parts of the forest conservation easement are located on the Property.
23. In 2002, the forest management plan incorporated into LUP #5W0914 was created (the Forest
Management Plan). NRB Ex. 13.
24. The Project is adjacent to mapped deer wintering habitat and areas subject to the Forest
Management Plan and Conservation Easement and may impact the protected habitat’s function.1
25. In 2022, Applicant conducted a timber harvest at the Property.
26. On July 29, 2022, Appellant filed LUP Application #5W0194-2 for the “as-built” Project.

1 It is disputed whether a portion of the Project is within areas subject to the Forest Management Plan that

Applicant either cut or otherwise uses in relation to the Project. Applicant disputes whether the Project is in the area, but
the record shows that ANR representatives observed portions of the Project within a portion of the conservation easement
zone. This dispute is not material because it is undisputed that the Project is at a minimum adjacent to portions of the
Property subject to the Forest Management Plan and at least has the potential to impact the deer wintering areas that it
was imposed to protect.

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27. On December 28, 2023, the District Commission dismissed the application on the grounds
that Applicant was not entitled to amend LUP #5W0914.
28. Applicant timely appealed to this Court.

Discussion
Prior to addressing the merits of the motion, the Court notes the applicable burdens of proof
in both this case, generally, and on the pending motions. Pursuant to 10 V.S.A. § 6088, the applicant
always carries the initial burden of production in an Act 250 case. Applicant also bears the burden of
proving that a permit amendment application satisfies the Stowe Club Highlands test. Re: Dr.
Anthony Lapinsky & Dr. Colleen Smith, Nos. 5L1018-4, 5L0426-9-EB, Findings of Fact, Conclusions
of Law, and Order, at 14 (Vt. Envtl. Div. Oct. 3, 2003). Lastly, the party moving for summary
judgment has the burden of proof with respect to establishing sufficient material facts for the Court
to rule on the pending motion. Couture v. Trainer, 2017 VT 73, ¶ 9, 205 Vt. 319 (quoting Price v.
Leland, 149 Vt. 518, 521 (1988)).
I. Act 250 Rule 34(E)
The central issue in this case and the pending motions is whether Applicant is entitled to a
permit amendment of LUP #5W0914 for the Project.
Act 250 Rule 34(E) codifies the Vermont Supreme Court’s analysis set forth in In re Stowe
Club Highlands. 166 Vt. 33, 38—40 (1996); Act 250 Rules, Rule 34(E). Rule 34(E) and Stowe Club
Highlands may preclude an applicant from amending conditions in a final and binding Act 250 land
use permit. Id. One of the goals of this limitation is to ensure that the issuance of an Act 250 permit
is not “merely a prologue to continued applications for permit amendments.” Stowe Club Highlands,
166 Vt. at 39.
When, however, there is a justification for an amendment application, the District
Commission, and this Court on appeal, must consider whether the proposed amendments comply
with Act 250. In re Waterfront Park Act 250 Amendment, No. 138-9-14 Vtec, slip op. at 4—5 (Vt.
Super. Ct. Envtl. Div. May 8, 2015) (Walsh, J.) aff’d by 2016 VT 39. This flexibility reflects the
recognized fact that “Act 250 permits are written on paper, not carved in stone, and the relitigation
concepts embodied in [Rule] 34(E)(2) cannot be considered unconditionally ironclad, as, in some
sense, every permit amendment application is a relitigation of an initial permit condition.” Re: Dr.
Anthony Lapinsky & Dr. Colleen Smith, Nos. 5L1018-4, 5L0426-9-EB, Findings of Fact, Conclusions
of Law, and Order, at 18 (Vt. Envtl. Div. Oct. 3, 2003).

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When reviewing a permit amendment application, this Court employs a stepped analysis of its
merit. First, we focus on the nature of the permit condition the application seeks to amend.
Specifically, “whether the applicant proposes to amend a permit condition that was included to resolve
an issue critical to the issuance of the permit.” Act 250 Rules, Rule 34(E)(1). This determination is
done on a case-by-case basis. Id. If the condition was not included to resolve a critical issue, then the
applicant is entitled to seek amendment thereof. Act 250 Rules, Rule 34(E)(1)(a).
If, however, the condition was critical to the permit’s issuance, also referred to as a “critical
permit condition,” we move to the next step of our analysis. At this stage, we weigh the competing
goals of finality and flexibility. We do this by looking to the following list of enumerated factors:
(a) changes in facts, law or regulations beyond the permittee’s
control;
(b) changes in technology, construction, or operations which
necessitate the amendment;
(c) other factors including innovative or alternative design which
provide for a more efficient or effective means to mitigate the impact
addressed by the permit condition
(d) other important policy considerations, including the proposed
amendment’s furtherance of the goals and objectives of duly adopted
municipal plans;
(e) manifest error on the part of the District Commission, the
environmental board, or the environmental court in the issuance of the
permit condition; []
(f) the degree of reliance on prior permit conditions or material
representations of the applicant in prior proceeding(s) by any party, the
District Commission, the environmental board, the environmental
court, or any other person who has a particularized interest protected
by 10 V.S.A. Ch. 151 that may be effected by the proposed
amendment[; and]
(g) whether the applicant is merely seeking to relitigate the permit
condition or to undermine its purpose and intent.
Act 250, Rule 34(E)(3)(a)-(g).
II. Critical Permit Condition
LUP #5W0914 contains numerous conditions, supporting representations, and exhibits.
Relevant here are Conditions 1 and 12, along with the associated Findings of Fact and Conclusions of
Law, and exhibits.
Condition 1 of LUP #5W0914 states:
The project shall be completed and maintained as set forth in Findings
of Fact and Conclusions of Law 5W0914, in accordance with the plans
and exhibits on file with the District Environmental Commission, and
in accordance with the conditions of this permit. No changes shall be
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made in the project without written approval of the District
Environmental Commission.
NRB Ex. 2.
Condition 12 states that:
Prior to the sale of any lots, the permittee shall work with the
Department of Fish and Wildlife to finalize the forestry management
plan described in the Exhibits and attached Findings of Fact. The
completed plan shall be binding on all affected lot owners during the
life of this permit and any proposed changes in the plan shall be subject
to prior Commission review and approval in the form of an amended
land use permit.
Id.
Finally, in the Findings of Fact and Conclusions of Law, the permit states:
This 230± acre tract is characterized by overgrown pastures and
woodlands. The Department of Fish and Wildlife [has] identified
significant deer wintering habitat on substantial portions of the tract
(Exhibits 8 and 18) and during the hearing the Department indicated
that lots 5, 6, 7, 10, 11 and 23 were most affected. The applicant is to
be applauded for its efforts to preserve these habitat and forestry
resources by placing conservation easement [sic] over 60% of the
proposed subdivision, restricting activity to limited forest
management. (Exhibits 3 and 16). A draft of the conservation
easement is set out on Exhibit 13 and includes lots 1, 2 and 5 through
15. An actual forest management plan will be devised with input from
the Department and this Commission shall be provided a copy of the
final plan for its review and concurrence. The Commission notes that
there will not be direct public access to the conservation zones through
the developed portions of the lots but that such access may continue
from adjoining properties for hunting and recreational purposes. In
closing, the Commission indicates that the forest management plan is
an integral part of its affirmative findings under this criterion [8] as to
habitat and under 9(C) as to forestry soils. This plan shall be binding
during the life of the land use permit and any changes in the plan, as a
result of proposed actions by a lotowner(s) shall be subject to prior
Commission review and approval by means of an amended land use
permit.
Id. (emphasis added).
Condition 12, which required the creation and implementation of a forest management plan
binding on all lot owners is, by the terms of the Findings of Fact and Conclusions of law, a critical
permit condition. LUP #5W0914 explicitly states that the forest management plan was “an integral
part” of the District Commission’s conclusions under Criteria 8 and 9(C). The terms of LUP
#5W0914 could not be more explicit. LUP #5W0914 explicitly states that changes to the forest

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management plan must receive review and approval through an amended land use permit. Condition
12 and the associated forest management plan conditions, intended to protect and preserve deer
wintering habitat, are critical permit conditions.
Applicant asserts that the Project does not seek amendment of this permit condition or any
aspect of the Conservation Easement, Forest Management Plan or any other contemplated forest
management restrictions on the Property created by LUP #5W0914 because she is in “compliance”
with them.2 This assertion is not supported by any evidence before the Court. Rather, Applicant’s
assertion ignores Conditions 1 and 12 and the Findings of Fact and Conclusions of Law, which restrict
activity within the forest management area to limited forestry management.3 Applicant does not
dispute that the Project as built is at a minimum adjacent to protected areas and has the potential to
impact the purpose of the forest management plan, the protection of deer wintering habitat.4 This is
apparent from the steps Applicant proposes as mitigation measures to limit, but not eliminate, impacts
to the deer wintering area from the Project. Because the Project seeks to allow impacts not
contemplated by LUP #5W0914 and which are outside the scope of its terms and the imposition of
Condition 12, Applicant seeks to amend a critical permit condition.
Neighbors also argue that LUP #5W0914 limits the allowed uses in the subdivision to
residential use only. This is based on the fact that LUP #5W0914 was specific to the residential
subdivision and contains numerous references to the residential nature of the application. Neighbors
assert that these references and defined scope of the subdivision application make the residential
nature of the subdivision a critical permit condition. Thus, because the Project is a commercial
development, they assert it conflicts with these critical conditions. Because we conclude that the
application seeks amendment of Condition 12, a critical permit condition, and for the reasons set forth

2 To the extent that Applicant argues that the application does not seek amendment of any permit condition

because LUP #5W0914 does not prohibit home-based businesses, this assertion ignores Condition 12 and the associated
land use limitations and their overarching purposes.
3 The Court further notes that Applicant’s Statement of Questions does not appear to challenge the fact that the

application seeks to amend a critical permit condition. Instead, the sole Question concerning whether Applicant is entitled
to seek an amendment addresses the factors the Court weighs in determining whether flexibility outweighs finality. The
Court only reaches this step of the permit amendment analysis once it concludes that the at-issue application seeks
amendment of a critical permit condition. See Act 250 Rules, Rule 34(E)(2). Thus, the issue of whether the application
seeks amendment of a critical permit condition is not directly before the Court as an issue raised in Applicant’s Statement
of Questions. See In re Garen, 174 Vt. 151, 156 (2002). To the extent, however, the issue is intrinsic to Question 2, the
Court addresses it. In re LaBerge NOV, 2016 VT 99, ¶ 15, 203 Vt. 98 (citing In re Jolley Assocs., 2006 VT 132, ¶ 9, 181
Vt. 190).

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below, the Court need not address whether LUP #5W0914’s statements regarding the residential
nature of the subdivision are, themselves, critical permit conditions.
III. Finality versus Flexibility
Having determined that the application seeks amendment of a critical permit condition, we
turn to the relevant factors to consider when determining whether finality outweighs flexibility, or visa
versa.
Pursuant to Rule 34(E), these factors are:
(a) By changes in facts, law or regulations beyond the permittee’s
control;
(b) changes in technology, construction, or operations which
necessitate the amendment;
(c) other factors including innovative or alternative design which
provide for a more efficient or effective means to mitigate the impact
addressed by the permit condition
(d) other important policy considerations, including the proposed
amendment’s furtherance of the goals and objectives of duly adopted
municipal plans;
(e) manifest error on the part of the District Commission, the
environmental board, or the environmental court in the issuance of the
permit condition; []
(f) the degree of reliance on prior permit conditions or material
representations of the applicant in prior proceeding(s) by any party, the
District Commission, the environmental board, the environmental
court, or any other person who has a particularized interest protected
by 10 V.S.A. Ch. 151 that may be effected by the proposed
amendment[; and]
(g) whether the applicant is merely seeking to relitigate the permit
condition or to undermine its purpose and intent.
Act 250, Rule 34(E)(3)(a)-(g).
Each factor is addressed in turn.
(a) Changes of facts, law, or regulations beyond permittee’s control.
Applicant appears to argue that the 1999 Department of Fish & Wildlife Guidelines for the
Review & Mitigation of Impacts to White-Tailed Deer Winter Habitat (the 1999 DFW Guidelines)
have been amended such that the Project is consistent therewith. This is based on this Court’s holding
in In re Ashford Land HOA Act 250 Application, No. 69-5-13 Vtec (Vt. Super. Ct. Envtl. Div. Dec.
6, 2013) (Walsh, J.). Ashford concerned an Act 250 permit condition in which dogs, generally, were
wholly banned from a subdivision and the decision was based in part on the 1999 DFW Guidelines
as it related to domestic dogs. No such condition exists in LUP #5W0914 and supporting documents

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for that application show that domestic dogs are contemplated to be within the subdivision, provided
they are leashed or confined.
Further, the 1999 DFW Guidelines, as cited in Ashford and by Applicant in the pending
motion, recognize that domestic dogs, even outside the deer wintering area, have impacts on the
habitat. It contains suggested language for model covenants to mitigate impacts from domesticated
dogs within residential subdivisions. It states:
Each landowner is hereby put on notice that this development is in the
immediate vicinity of a deer wintering area. Domestic dog activity
seriously jeopardizes this critical habitat and the existence of the deer
in this area. A person who owns a dog that is not leashed, kenneled or
otherwise under the owner’s immediate control is subject to the
penalties of 10 V.S.A. section 4748 (Dogs Pursuing Deer) and section
4514 (Possession of Flesh of Game).
1999 DFW Guidelines at 7 (filed as NRB Ex. 19).
As such, Ashford, concerning a complete prohibition on dogs in a residential subdivision, and
the 1999 DFW Guidelines, which specifically state that domestic dogs in areas even outside, but in
the vicinity of, deer wintering areas seriously jeopardize the habitat, do not weigh in favor of flexibility.
This is particularly true when, while it is disputed whether Applicant operates within current or former
deer wintering habitat, it is undisputed that Applicant’s operations are adjacent thereto.
Applicant presents no other changes in fact, law or regulation that were beyond Applicant’s
control that would weigh in favor of flexibility. Thus, we conclude this factor weighs in favor of
finality.
(b) Changes in technology, construction, or operations which necessitate the amendment.
Applicant points to no changes in technology, construction, or operations that themselves
necessitate the amendment. This is because she points to no factors outside of her control that would
weigh in favor of flexibility.5 Thus, this factor weighs in favor of finality.
(c) Other facts including innovative or alternative design which provide for a more
efficient or effective means to mitigate the impact addressed by the permit condition.
Applicant has noted that she’s adopted a series of operational changes that she asserts mitigate
the impact from the Project on the deer wintering areas. These include, generally, limitations and rules
for dog walking, service changes and limited hours of operations, relocating and resizing the outside
doggie daycare area, imposing training and bark e-collar requirements, and staff changes and training.

5 Applicant does point to changes in her as-built operations and devices she can use that she asserts would

mitigate or minimize impacts from the Project and, presumably, the impact addressed by the Condition 12. We address
these assertions under subsection (c), where they are better suited than subsection (b).

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These proposed operational changes are not a “more efficient or effective means” to mitigate
impacts to the deer wintering area protected by Condition 12. Instead, the changes are means to
mitigate the as-built Project, which has its own impacts not contemplated by Condition 12 when
proposed. Thus, the changes do not propose to mitigate impacts from the residential subdivision
more effectively than Condition 12 but instead they seek to mitigate a previously uncontemplated use,
with uncontemplated impacts on the deer wintering area Condition 12 seeks to protect. See e.g., In
re Costco Land Use Act 250 Permit Amendment, No. 20-3-20 Vtec, slip op. at 8 (Vt. Super. Ct. Envtl.
Div. Aug. 31, 2021) (Durkin, J.) (concluding that subsection (c) weighed in favor of finality when
proposed project changes did not seek to more effectively mitigate at-issue impacts and that
operational changes may create their own impacts).6
Thus, Applicant’s as-built proposed mitigation measures for the Project do not weigh in favor
of flexibility and we conclude that subsection (c) therefore weighs in favor of finality.
(d) Other important policy considerations, including the proposed amendment’s
furtherance of the goals and objectives of duly adopted municipal plans.
Applicant argues that at all relevant times the Town of Roxbury Town Plan has supported
home businesses in the town generally and within the Property’s district. The current Town Plan,
however, contains additional language that was not present in the Town Plan effective at the time of
LUP #5W0914 in which it calls for prioritizing habitat protection, with specific reference to deer
wintering habitat and development adjacent thereto. See Applicant Ex. N at 17 (“Deer annually
migrate to areas which provide protection from harsh winter conditions . . . Development within or
adjacent to these [deer] wintering areas ultimately decreases the ability of the land to support deer.”);
id. at 58 (“Action . . . [p]rotect critical wildlife habitat (deer wintering areas . . . ).”). Applicant does
not address or contest this language or otherwise provide an understanding as to how or why the
provisions related to home businesses interrelate with the clear goals of protecting deer wintering
habitat.
Thus, even if the Court were to conclude that the Project would further the Town Plan’s
objectives of supporting home businesses, it would run counter to its stated goals of protecting and
prioritizing deer wintering habitat protection because the Project will impact the habitat. In this case,
where deer wintering habitat protection is the crux of the issues before the Court and the condition
the amendment seeks relief from, and there is a clear objective within the applicable Town Plan to

6 The Court notes that the Costco decision is presently pending on appeal before the Vermont Supreme Court.

The decision’s rationale, however, as it relates to subsection (c) remains relevant.

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protect deer wintering habitat, this factor must weigh in favor of finality despite the provisions related
to home businesses.7
(e) Manifest error on the part of the District Commission, the environmental board, of the
environmental court in the issuance of the permit condition.
No party asserts that manifest error occurred in the issuance of LUP #5W0914 or any permit
condition therein. Thus, this factor weighs in favor of finality.
(f) The degree of reliance on prior permit conditions or material representations or the
applicant in prior proceeding(s) by any party, the District Commission, the
environmental board, the environmental court, or any other person who has a
particularized interested protected by 10 V.S.A. Ch. 151 that may be affected by the
proposed amendment.
With respect to the NRB and the District Commission, Condition 12 was essential to the
issuance of LUP #5W0914. The record of LUP #5W0914 reflects that the District Commission relied
upon representations made in the subdivision application and that those representations, which
culminated in Condition 12 and related documents, which were “integral” to the District
Commission’s conclusions with respect to Criterion 8 and 9(C). The record reflects significant reliance
by the District Commission in this circumstance.
Further, Neighbors have provided affidavits that they purchased their properties specifically
in reliance on the wildlife protections set forth in LUP #5W0914. Applicant does not contest these
assertions.
The reliance by the District Commission and Neighbors is reasonable and weighs strongly in
favor of finality. See Stowe Club Highlands, 166 Vt. at 40 (“The reasonable reliance of the District
Commission and the neighboring landowners weighs strongly against granting a permit
amendment.”).8 Further Applicant does not address this factor and presents no assertion that it weighs
in favor of flexibility. It is her burden to prove that factors weigh in favor of flexibility. Re: Dr.
Anthony Lapinsky & Dr. Colleen Smith, Nos. 5L1018-4, 5L0426-9-EB, Findings of Fact, Conclusions
of Law, and Order, at 14 (Vt. Envtl. Div. Oct. 3, 2003). Thus, this factor weighs in favor of finality.
(g) Whether the applicant is merely seeking to relitigate the permit condition or to
undermine its purpose and intent.
The Project seeks to undermine the intent of Condition 12’s purpose. Condition 12 and its
related documents and limitations were imposed to preserve and limit impacts on deer wintering areas

7 Even giving equal weight to the competing provisions within the Town Plan, this factor would, at best, weigh

neutrally.
8 It is for this reason and due to the fact that Applicant has failed to address this factor that the Court need not

address the NRB’s arguments that ANR and the Town of Roxbury also relied upon LUP #5W0914.

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around the subdivision and on the Property. This includes impacts from domestic dogs. See NRB
Ex. 9 (LUP#5w0914 proposed deed restrictions including that “[a]ll dogs must be confined or
leashed.”). The Project seeks relief from aspects of this condition to allow for greater than
contemplated impacts on the preserved habitat. Applicant asserts that she does not seek to relitigate
Condition 12,9 but that assertion is without support and ignores the fact that the Project undermines
Condition 12 and the wildlife protections of LUP #5W0914. Thus, this factor weighs in favor of
finality.
Having reviewed all relevant factors, the Court finds that the material facts are not in dispute
such that no factor weighs in favor of flexibility and, as such, Applicant is not entitled to seek
amendment of LUP #5W0914. For this reason, Applicant’s motion is DENIED and the NRB and
Neighbors’ motions are GRANTED.
Conclusion
For the foregoing reasons, the Court concludes that the material facts are not in dispute and
the NRB and Neighbors are entitled to judgment as a matter of law and their motions are
GRANTED. Conversely, Applicant is not entitled to judgment as a matter of law and her motion is
DENIED. Having concluded that Applicant is not entitled to seek amendment of LUP #5W0914,
all other issues before the Court are MOOT.
This concludes the matter before the Court. A Judgment Order accompanies this Decision.
Electronically signed this 2nd day of October 2024 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

9 This appears to in part be due to her assertion that she is “in compliance” with its terms. For the reasons set
forth above, the Court disagrees.

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