Ampersand Properties, LLC PRD DRB Final Review Application - Merits Decision

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
32 Cherry St, 2nd Floor, Suite 303, Docket No. 25-ENV-00022
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

Ampersand Properties, LLC MERITS DECISION
PRD DRB Final Review Application

In this on-the-record matter, Ampersand Properties, LLC (Applicant) appeals a March 4, 2025
decision of the Town of Stowe (Town) Development Review Board (DRB) denying its request for a
planned residential development (PRD) containing 22 units and associated infrastructure (the Project)
at property located on Mountain Road, Stowe, Vermont (the Property).
In this matter, Applicant is represented by Elizabeth Conolly, Esq. The Town is represented
by David W. Rugh, Esq. and Beriah C. Smith, Esq. David Wolfgang has also entered an appearance
as an interested party and is self-represented in this matter. Mr. Wolfgang did not participate in the
briefing on the merits.
Legal Standard
This is an on-the-record appeal. Thus, the Court considers only the decision below, the record
made before the municipal panel, and the briefs submitted by the parties. In re Saman ROW
Approval, No. 176-10-10 Vtec, slip op. at 1 (Vt. Super. Ct. Envtl. Div. Sept. 2, 2011) (Durkin, J.). On
appeal, we do not take new evidence or make our own factual determinations. The Court instead
reviews the municipal panel’s factual findings to determine whether the decision below “explicitly and
concisely restate[s] the underlying facts that support the decision.” See 24 V.S.A. § 1209(a)-(b).
The Court will only affirm factual findings if they are supported by substantial evidence in the
record below. See In re Stowe Highlands Resort PUD to PRD Application, 2009 VT 76, ¶ 7, 186 Vt.
586. The Court does not assess the credibility of witness testimony or reweigh conflicting evidence
in the record. See Devers-Scott v. Off. Of Prof’l Regulation, 2007 VT 4, ¶ 6, 181 Vt. 248. Instead,
the Court simply looks to whether the record includes relevant evidence that a “reasonable person
could accept . . . as adequate” support for the factual findings.” Id. (quoting Braun v. Bd. of Dental
Exam’rs, 167 Vt. 110, 114 (1997)). In an on-the-record appeal such as this, the Court reviews legal
determinations de novo. In re P&R Assoc., LLC, No. 74-6-12 Vtec, slip op. at 3–4 (Vt. Super. Ct. Envtl.

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Div. Feb. 1, 2013) (Walsh, J.). Our review is additionally limited to those issues raised in Applicant’s
(here, the appellant’s) Statement of Questions. See V.R.E.C.P. 5(f).
Statement of Questions
Applicant poses two Questions in its Statement of Questions. They ask:
1. Did the [DRB] err in their determination that the Project fails to
comply with § 8.4(2) of the Town of Stowe Zoning Regulations?
2. Did the DRB err in their determination that the Project fails to
comply with § 5.1(f) of the Town of Stowe Subdivision Regulations?
Statement of Questions (filed Apr. 21, 2025).
Factual Background
The Property contains ±5.3 acres and is located in the Mountain Road Village (MRV).
Applicant applied for a planned residential development (PRD) on the Property to consist of 6
residential buildings containing a total of 22 units. The Project consists of four duplexes and two
multifamily buildings containing seven units each. The application is subject to the Town of Stowe
Zoning Regulations, effective January 31, 2024 (the Zoning Regulations) and the Town of Stowe
Subdivision Regulations, effective July 16, 2012 (the Subdivision Regulations). The DRB heard the
application and denied the Project based on its conclusion that the Project does not comply with
Zoning Regulations § 8.4(2), related to the provision of a village green at the Property, and Subdivision
Regulations § 5.1(4), related to settlement patterns.
Applicants propose a total of ±2.055 acres of village green across three areas on the Property.
First, there is a ±0.996-acre portion fronting the West Branch of the Little River. It is not defined by
building facades or street edges. Second, there is a ±0.453-acre portion fronting portions of VT-
108/Mountain Road. The Stowe Recreation Path runs through this area and a proposed pedestrian
connection would link that path to the central village green area. This portion of the proposed village
green is not defined by building facades and street edges. Third, there is a ±0.606-acre rectangular
village green proposed in the interior of the PRD’s buildings and generally defined by the edge of the
proposed internal private roadway. The internal village green will also accommodate stormwater
management areas with gravel wetlands.
Beyond the above, the DRB did not make findings regarding the settlement patterns for the
Project. Most notably, the DRB made no findings regarding the street network proposed for access
to the Project or its orientation towards the streetscape.

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Discussion
I. Zoning Regulations § 8.4(2)
In the MRV, development must meet some standards in the Meadowland Overlay District.
Relevant here:
[D]evelopment on designated meadowland shall be permitted in a
manner which establishes a village green, said green to be formally
defined by building facades, street edges or other appropriate defining
elements. The defined green shall be of a size and shape that is
consistent with traditional New England village greens; shall be
oriented toward, and front upon, adjacent streams and public roads
and highways; and shall be designed and managed to function as a
public space. In no case shall the size of the defined green be less than
thirty (30%) of the total size of the designated meadowland, or less
than 1.5 acres, whichever is greater.
Zoning Regulations § 8.4(2).
First, Applicant challenges the DRB’s conclusion that the proposed village green did not meet
the dimensional requirement because, although each individual section alone does not meet the area
requirement, the entire proposed area does when viewed as a whole.
When interpreting a zoning ordinance, the Court’s goal is to effectuate the intent of the
drafters, first by looking to the plain meaning of the regulation at issue and the “whole of the
ordinance.” In re Tyler Self-Storage, 2011 VT 66, ¶ 13 (quotation omitted). In construing statutory
or ordinance language, our paramount goal is to implement the intent of its drafters. Morin v. Essex
Optical/The Hartford, 2005 VT 15, ¶ 7, 178 Vt. 29. We will therefore “adopt a construction that
implements the ordinance's legislative purpose and, in any event, will apply common sense.” In re
Laberge MotoCross Track, 2011 VT 1, ¶ 8, 189 Vt. 578 (quotation omitted); see also In re Bjerke
Zoning Permit Denial, 2014 VT 13, ¶ 22 (quoting Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49,
195 Vt. 586 (1986)) (“Our goal in interpreting [a zoning regulation], like a statute, ‘is to give effect to
the legislative intent.’”). Moreover, we will not interpret zoning regulations in ways that lead to
irrational results. See Stowe Club Highlands, 164 Vt. 272, 280 (1995) (refusing to interpret regulation
such that it leads to irrational results). Finally, because zoning regulations limit common law property
rights, we resolve any uncertainty in favor of the property owner. Bjerke Zoning Permit Denial, 2014
VT 13, ¶ 22. With these provisions of interpretation in mind, we turn to the applicable regulatory and
statutory provisions.
Applicant proposes a total of ±2.055 acres of “village green” across interconnected areas on
the Property. The Zoning Regulations require no less than 30% of the total size of the designated

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meadowlands or less than 1.5 acres, whichever is greater. At a minimum, Zoning Regulations § 8.1(4)
is ambiguous and its terms must be resolved in Applicant’s favor. The proposed village green area’s
“total size” meets the dimensional requirements. There is no aspect of § 8.1(4)(2) that specifically
states that a village green must be one area meeting all of the requirements set forth therein, only that
the total area does. The village green need not be confined to one area to comply with the dimensional
requirements of Zoning Regulations § 8.1(4).
Next, Applicant challenges the conclusion that the village green does not meet design
standards with regard to designation as it relates to building facades, street edges or other appropriate
defining elements or general orientation and management of a public area. Functionally, Applicant
argues that there was sufficient evidence in the record to reach an alternative finding and conclusion
on these issues. Although framed as an argument as it relates to the DRB’s legal conclusions, this
assertion essentially asks the Court to reweigh the record evidence, reach factual findings different
from the DRB, and correspondingly alter its legal conclusions as to the Project’s compliance with the
Zoning Regulations § 8.1(4). While Applicant may feel that sufficient evidence was presented in the
record with respect to design and management of the village green as a public space, the argument
requests the Court reweigh the evidence presented below, which we will not do. See Devers-Scott,
2007 VT 4, ¶ 6. That the DRB did not give weight to Applicant’s evidence does not present grounds
to overturn the decision in an on-the-record appeal.1 In fact, clear evidence exists in the record
showing that the DRB did not believe that the evidence regarding the management of the village green
as a public space in the context of § 8.1(4) was sufficient to reach a conclusion that the space would
meet this requirement of the Zoning Regulations. Instead, it is clear that the DRB was concerned that
this area was not to be “public” but instead generic open space.
Thus, while the Court disagrees with the DRB’s conclusion with respect to the dimensions of
the village green, the Court finds that there is substantial evidence in the record to support the factual
findings with respect to the Project’s compliance with applicable design standards and the Court will
not reweigh the record evidence. To the extent that Applicant makes a challenge to the DRB’s legal
conclusions with respect to the design standards, those conclusions are affirmed. Question 1 must
therefore be answered in the negative: the DRB did not err in concluding that the application did not
comply with Zoning Regulations § 8.1(4).

1 The same conclusion holds true for Applicant’s arguments regarding the village green’s relationship to building

facades and frontage on Little River and/or Mountain Road.

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II. Subdivision Regulations § 5.1(4)
The merits of Question 2 are largely mooted by the adjudication of Question 1, upholding the
DRB’s findings and conclusions regarding the definition of the village green area. Relevant to this
application, Subdivision Regulations § 5.1(4)(a) requires that subdivisions “shall be designed to reflect
traditional village settlement patterns characterized by an appropriate scale of development, an
interconnected street network with development oriented to the streetscape, a mix of land uses and
pedestrian access.”
The Court notes that the DRB made no factual findings regarding whether the Project would
include interconnected street networks despite there appearing to be some level of evidence on that
issue presented. Nor do there appear to be factual findings regarding how the development proposed
to be oriented to the streetscape. Thus, but for the Court’s above conclusion regarding Question 1,
the Court would likely have needed to remand this matter back to the DRB for additional factual
findings.
Finally, despite the above, Applicant challenges the DRB’s legal conclusion that the Project
does not contain a mix of land uses because it is generally residential in nature. While the Court need
not issue a final ruling on the merits of this argument because of the adjudication of Question 1, it
notes that Applicant’s legal theory may have merit. Multi-family dwelling units and two-family
(duplex) dwelling units are listed as different land uses in the Zoning Regulations Table of Uses. See
Zoning Regulations Table 6.1. While they are both included under the general “residential” umbrella,
they are clearly defined as different land uses by this table. Id. In fact, two-family and multi-family
residential uses are subject to different standards because duplexes are permitted uses in all districts
whereas multi-family residential uses are conditional uses in all districts. Id. Further, the uses have
different density standards. See Zoning Regulations Table 6.3.2
The Court need not reach a final conclusion on this issue, however, in light of the Court’s
conclusion with respect to Question 1. Instead, Question 2 is MOOT.
Conclusion
For the following reasons, the Court AFFIRMS the DRB’s denial of the permit. In so doing,
the Court disagrees with the DRB’s interpretation of the dimensional requirements of a village green

2 The Town disagrees with this position and cites the Zoning Regulations definition of “mixed-use
development.” The Court need not completely reconcile this argument at this time. It simply points out that Applicant’s
argument is not baseless when considering the general principles of interpretation. This includes, but is not limited to,
recognition to Zoning Regulations § 4.21, including subsection (4) thereof which specifically addresses PRDs within the
context of mixed uses.

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as defined by Zoning Regulations § 8.1(4) but finds credible evidence to support their factual findings
with respect to the proposed village green’s noncompliance with other design standards. Because the
denial below may be upheld on these grounds, Question 2 is MOOT, though the Court specifically
notes concerns with the factual findings and, potentially, legal conclusions reached with respect to the
Project’s compliance with Subdivision Regulations § 5.1(4).
This concludes the matter before the Court. A Judgment Order accompanies this Decision.
Electronically signed February 2, 2026 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

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