North Hollow Road Subdivision Amendment - Merits Decision

VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION
32 Cherry St, 2nd Floor, Suite 303, Docket No. 25-ENV-00069
Burlington, VT 05401
802-951-1740
www.vermontjudiciary.org

North Hollow Road MERITS DECISION
Subdivision Amendment

This is an on-the-record appeal by Vermonty, LLC (Appellant) of an August 14, 2025 Town
of Stowe (Town) Development Review Board (DRB) decision approving an application submitted by
the Donaldson Family Trust, through Trustees Mark and Rebecca Donaldson (Applicant) for a
subdivision amendment to construct a 3-bedroom single-family residence at 1243 North Hollow
Road, Stowe, Vermont (the Property). Appellant appealed that decision to this Court.
In this matter, Appellant is represented by Michael J. Tarrant II, Esq. and Nicholaes AE Low,
Esq. Applicant is represented by Alexander J. LaRosa, Esq. The Town has appeared and is
represented by David W. Rugh, Esq. and Zachary I. Handelman, Esq.
Legal Standard
In an on-the-record appeal, 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. Nov. 9, 2011) (Durkin, J.). In such an appeal,
the Court does not take new evidence or make its own factual determinations. Instead, the Court
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. 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)). When we review an appeal on-the-record, 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. Div. Feb. 1,

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2013) (Walsh, J.). Our review is additionally limited to those issues raised in the Appellant’s Statement
of Questions. See V.R.E.C.P. 5(f).
Statement of Questions
Appellant has filed a 12-Question Statement of Questions. They ask:
1. Did the DRB err in concluding that Lot 2 from the underlying
subdivision permit, issued in 2020, was a “deferred” lot that could be
reviewed five years later without complying with the Stowe Club
Highlands / Hildebrand test?
2. Did the DRB err in failing to conduct the necessary Stowe Club
Highlands / Hildebrand analysis?
3. Should the Court deny the application because it fails to comply
with Stowe Club Highlands / Hildebrand analysis?
4. Did the DRB err in determining that, under Subdivision
Regulation Section 5.1(1) there is no evidence in the hearing record to
indicate that the proposal will have an undue adverse impact?
5. Did the DRB err in determining Zoning Regulations Section
9.5, Standards 2, 3, and 12 are not applicable to the Project?
6. Did the DRB err in concluding that there will be no undue
adverse impact under Zoning Regulations Section 9.5, Standard 4, and
that the Project complies with Standard 4?
7. Did the DRB err in concluding that the application complies
with Section 5.1(3) of the Subdivision Regulations?
8. Did the Applicant fail to provide sufficient evidence regarding
the location and dimensions of the stream on the property to support a
conclusion that the Project complies with Zoning Regulations Section
9.5, Standard 4?
9. Did the Applicant fail to provide sufficient evidence, and did
the DRB fail to make sufficient findings, to support a finding and
conclusion that a 50’ buffer from the stream on the property is
sufficient to comply with Zoning Regulations Sections 3.10 and 9.5,
Standard 4 (see Guideline 4.4) and also Subdivision Regulation Section
5.1(2)?
10. Did the Applicant fail to provide sufficient evidence to support
a finding that the Project will not have an undue adverse impact on any
significant wildlife habitat and natural communities under Zoning
Regulations Section 9.5, Standard 4 and also Subdivision Regulation
Section 5.1(3)?
11. Did the Applicant fail to provide sufficient evidence regarding
location of very steep slopes, including slopes over 15% grade to
support a conclusion that the Project complies with Zoning Regulations
Section 9.5, Standard 4?

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12. Did the DRB err in concluding the Project complies with
Section 5.2 of the Subdivision Regulations?
Statement of Questions (filed Sept. 4, 2025).
Factual Background
Applicant owns the Property. The Property was created by a subdivision approved by the
DRB in 2020. At the time, the Property was identified as “Lot 2.” The 2020 subdivision approval
stated that “[a]dditional review by the DRB is required prior to the issuance of any zoning permit for
development on Lot 2.” Record at 044. The application presently on appeal seeks approval to develop
Lot 2 with a 3-bedroom single family home with a driveway and septic system. Clearing work will be
required to construct the project.
The Property is ±7.06 acres. It is located within the Rural Residential 5 (RR5) District and the
Ridgeline and Hillside Overlay District (RHOD) as those terms are defined by the Town of Stowe
Zoning Regulations (the Zoning Regulations). The application is also subject to the Town of Stowe
Subdivision Regulations, effective July 22, 2012 (the Subdivision Regulations).
There is a mapped stream along the Property’s northern boundary and the eastern portion of
the Property. The project proposes a 50-foot setback from the stream. The Property is mostly steep
slopes greater than 15% as depicted by the Agency of Natural Resources (ANR). The building site
for the single-family home is on slopes between 5 and 20%.
The DRB held public hearings on the application in April and June 2025 and a site visit on
June 17, 2025. Appellant owns neighboring property. Appellant’s members submitted a letter to the
DRB dated May 23, 2025 and co-signed by other neighbors, the Orrs. Record at 068-73. Appellant
did not attend any DRB hearings or submit any comments to the DRB beyond the letter. Ms. Orr
participated in two of the public hearings DRB hearings. Appellant timely appealed to this Court.
Discussion
A. Preservation
As a threshold matter, Applicant challenges whether Appellant has adequately preserved the
issues within its Statement of Questions and briefing on appeal. Appellant asserts that issue
preservation is not relevant to this appeal. The Court disagrees with Appellant.
This Court is governed by the Vermont Rules of Appellate Procedure (V.R.A.P.) when hearing
appeals on-the-record. See V.R.E.C.P. 5(h); see also In re Ferra & Fenn Gravel Pit Application, No.
159-9-10 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Sept. 29, 2011) (Durkin, J.). Briefs submitted
in such appeals must conform to V.R.A.P. 28. See In re Ledgewood Condo PUD CU Amendment

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Application, No. 150-7-07 Vtec (Vt. Envtl. Ct. Aug. 26, 2008) (Durkin, J.) (citing In re Miller, No. 59-
3-07 Vtec, slip op. at 7 (Vt. Envtl. Ct. Nov. 5, 2007) (Durkin, J.)). V.R.A.P. 28(a)(4) requires an
appellant’s brief to include in its argument “the issues presented, how they were preserved . . . with
citations to the authorities and parts of the record on which the appellant relies.”
The purpose of the preservation rule “is to ensure that the original forum is given an
opportunity to rule on an issue prior to [appellate] review.” In re White, 172 Vt. 335, 343 (2001)
(emphasis added). For an issue to be preserved, “a party must present the issue to the [body below]
with specificity and clarity in a manner which gives the [body] a fair opportunity to rule on it.”1 Pratt
v. Pallito, 2017 VT 22, ¶ 16, 204 Vt. 313 (quotation omitted).
Recently, this Court has recognized that some aspects of the preservation rule may be flexible
in the context of on-the-record appeals from appropriate municipal panels to this Court in zoning
matters. In re Stowe Country Club, No. 25-ENV-00021, slip op. at n. 3 (Vt. Super. Ct. Envtl. Div.
Mar. 26, 2026) (Walsh, J.). For example, in Stowe Country Club, the Court declined to adopt an
application of V.R.A.P. 28 to this Court that would require a party to submit legal briefing to preserve
a legal interpretation theory on appeal. Id. Instead, the Court looked to various witness testimony
provided and cited to determine if the theory was sufficiently understandable to be considered
preserved. Id. at 4—5. Thus, issue preservation is directly applicable to this Court in on-the-record
appeals, though with slight flexibility to recognize the realities of the process before an appropriate
municipal panel.
Applicant asks the Court to go a step further and state that issue must be preserved by the
appellant and not by another party.2 Appellant submitted a letter to the DRB co-signed by its
neighbors, the Orrs. See Record at 068-73. That letter does not include reference to a number of
matters raised in its Statement of Questions or issues raised on appeal. The Court need not rule upon
whether this deficiency limits Appellant’s scope of preserved issues because, even if the Court looks

1 While these cases relate to issue preservation in the appellate context, the general concept of presentation to an

appropriate municipal panel in the first instance is also relevant to the general requirement that a party participate in an
appropriate municipal panel process to appeal to this Court under 24 V.S.A. § 4471(a). This Court has interpreted the
purpose of the participation requirement of § 4771(a) is “to require that an appellant bring information before the
municipal panel as a way of helping that panel reach its decision in the first instance.” In re Verizon Wireless Barton
Permit, No. 133-6-08 Vtec, slip op. at 6 (Vt. Envtl. Ct. May 20, 2009) (Durkin, J.) aff’d 2010 VT 62. Thus, consideration
of the presentation of issues to an appropriate municipal panel in the first instance is generally an aspect of appeals in this
Court.
2 To the extent there is a dispute about Appellant’s participation, this Court has held that letters sent to a

municipal panel or a town’s planning or zoning offices in advance of a hearing satisfy the participation requirement of
§ 4771(a). See In re Caleb Temple DBA Kirby MTN Landscaping, No. 107-8-11 Vtec, slip op. at 1-2 (Vt. Super. Ct. Envtl.
Div. Sept. 5, 2012) (Walsh, J.). Thus, Appellant participated by co-signing a letter with its neighbors.

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at the record as a whole, neither Appellant nor another party raised issues related to a number of
matters within Appellant’s Statement of Questions.3 Thus, the Court must conclude that those issues
are outside the scope of its review in this case because the DRB never had the opportunity to rule
upon the issue before appellate review in this Court. It would therefore violate the principles
applicable to issue preservation and, more generally, participation, to allow Appellant to raise them in
the first instance on appeal without even discussing alleged challenges to the application’s compliance
with the cited provisions before the DRB.
First, in considering whether Question 4 was preserved below, the Court can discern no
discussion, within Appellant’s letter or other locations within the testimony, that indicates that
Appellant or another interested party, such as the Orrs, believed the application did not comply with
Subdivision Regulations § 5.1(1), which relates to the character of the land for development. While
Subdivision Regulations § 5.1(1) includes a discussion of an undue adverse effect on the environment,
all of Appellant and interested party’s testimony was related to and cited other provisions of the
Subdivision and Zoning Regulation, notably Zoning Regulations § 9.5.4 Question 4 is therefore
DISMISSED as not properly before the Court.
Second, Question 5 challenges the DRB’s conclusion that Zoning Regulations § 9.5 Standards
2, 3, and 12 were not applicable to this application. These Standards concern timber harvesting and
management practices developed by the Department of Forest, Parks and Recreation (Standard 2),
review of the DRB of pre-development forest management activities (Standard 3), and the minimum
area for lots in the underlying district (Standard 12). Appellants’ letter contains no reference to these
provisions, despite specifically citing other Zoning Regulations. Testimony provided by other
neighbors does not indicate that there was a belief that the application should have complied, or did
not comply, with any of these Standards. Thus, Question 5 is DISMISSED.
Third, Questions 7 and 10 concerns Zoning Regulations § 9.5, Standard 4 and Subdivision
Regulations § 5.1(3). Section 5.1(3) addresses mapped significant wildlife habitat areas and § 9.5,
Standard 4 partially does as well. Appellant’s briefing on these Questions is related to wildlife habitat.
Again, even taking an expansive review at comments submitted both by Appellant and by other

3 Appellant has cited to no provision of the record below that preserves any aspect of the matters raised on

appeal. Thus, the Court has taken it upon itself to review the record. This is atypical and the Court does not seek to adopt
it as a practice. Instead, this approach is in recognition to the fact that the concept of issue preservation in this Court has
not been thoroughly addressed and, in light of that, to ensure complete review by this Court in this matter.
4 To the extent it was properly preserved, this Question is likely answered by the Court’s conclusions on the

remaining Questions below.

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neighbors, compliance with this provision or concerns related to wildlife were not raised before the
DRB. While Zoning Regulations § 9.5, Standard 4 is specifically cited within Appellant’s letter to the
DRB, it is directly related to slopes and flooding impacts. There is no discussion of wildlife habitat
or wildlife impacts. Thus, Questions 7 and 10 are DISMISSED.
The Questions that therefore remain before the Court are Question 1 through 3, 6, 8, 9, 11,
and 12.5
B. Remaining Issues
a. Stowe Club Highlands/Hildebrand
Through Questions 1 through 3, Appellant generally argues that the DRB erred because it
failed to conduct the requisite Stowe Club Highlands/Hildebrand analysis related to permit
amendment applications.
Stowe Club Highlands, 166 Vt. 33 (1996), applicable in the municipal context through In re
Hildebrand, 2007 VT 5, is a potential threshold barrier in a permit amendment application. In order
for a municipal permit amendment application to be considered on the merits, Applicant must show
either that the condition they seek to amend was not critical to the issuance of the permit, see Lonie
Parker dba Porky's Bkyd BBQ SP & NOV, No. 6-1-20 Vtec, slip op. at 30 (Vt. Super. Ct. Envtl. Div.
Nov. 17, 2020) (Walsh, J.), or, if it was, it must go through relevant factors. Stowe Club Highlands, 166
Vt. 33, 38 (identifying factors); Hildebrand, 2007 VT 5, ¶13 (upholding the Environmental Court's
application of these factors in a zoning case). Applicant must prove to that the need for flexibility
outweighs the interests of finality in their case under the relevant factors. See Clark & Castle Final Plan
Amendment, No. 52-4-19 Vtec, slip op. at 6 (Vt. Super. Ct. Envtl. Div. May 22, 2020) (Durkin, J.)
(citation omitted). Here, the amendment application before the Court was contemplated by the 2020
approval such that application of the flexibility/finality factors is not needed.
There can be no legitimate dispute that the Property’s compliance with relevant standards was
deferred. In fact, Appellants’ letter to the DRB recognizes that the DRB “deferred review” on relevant
standards when it approved the lot in 2020. See Record 070. While the 2020 permit is not in the
record, there is substantial evidence in the record to support the DRB’s finding that “[a]ny future
clearing or development of Lot 2 [the Property] shall require additional review by the DRB.” DRB

5 Question 9 contains references to Zoning Regulations § 3.10 and Subdivision Regulations § 5.1(2). Neither
provision is cited in the Appellant’s letter or testimony, but the letter specifically references a 50-foot setback from streams,
addressed in Zoning Regulations § 3.10. The three provisions also substantially overlap as it relates to the stream such
that the issue is preserved.

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Decision at 3, 6.6 It is also clear that the DRB considered the prior permit based on this reference
and other citations from Applicant. Thus, the 2020 subdivision approval explicitly contemplated a
future application for some scope of development or clearing of the Property. It also specifically
contemplated that whatever future application the DRB received would be reviewed for compliance
with relevant regulations at that time. It is clear on its face that the previous permit contemplated
amendment and further development of this parcel. Thus, the present application does not seek
amendment of a critical permit condition.
While the decision below does not contain a complete analysis of this, this Court reviews the
legal conclusions de novo. To the extent that the decision lacks a large analysis of Stowe Club
Highlands/Hildebrand, it is clear that it is intrinsic given reference to the prior DRB decision and the
fact that it considered the application on the merits. Further, in light of the above de novo review of
the DRB’s legal conclusions, a lengthy permit amendment analysis would not be required in this
circumstance, when the pending application was contemplated by the subdivision permit it seeks to
amend. The Court fails to understand why a remand to conduct a Stowe Club Highlands/Hildebrand
analysis would be needed when the underlying permit that Applicant seeks amendment of
contemplates an application like the one before the Court in this matter.7
It is also for this reason that this case is not analogous to In re Evans Clearing Limits, as cited
by Appellant. See. No. 21-ENV-00035 (Vt. Super. Ct. Envtl. Div. July 29, 2022) (Durkin, J.). In that
matter, the Court addressed the Town’s motion for remand to conduct a Stowe Club
Highlands/Hildebrand analysis. Id. Evans Clearing Limits concerned a property that had specifically
limited in previous permits the areas on the subject property that could be cleared of natural vegetation
(i.e., clearing limits). Id. at 1. The applicant in that case sought after-the-fact approval to specifically
alter those imposed clearing limits. Id. at 1-2. Contrary to Appellant’s argument, there are no specific
clearing limits imposed on the Property in this case. Instead, development was not approved at in the
2020 subdivision and approval of such development was specifically contemplated with by that

6 The Court cites to the PDF page of this document.

7 Appellant presents no assertion that the application would have failed the Stowe Club Highlands/Hildebrand

analysis. In this respect, it mostly argues that the record is unclear. The 2020 permit related to Lot 2, however, is not
disputed and supported by the record such that the record on this issue is sufficiently established and remand would be
inappropriate.

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permit.8 Thus, the cursory reference to the prior permit is enough to satisfy its requirement to consider
Hildebrand before reaching the merits of the application in this case.9
Thus, the Court answers Questions 1 through 3 in the negative concluding that the application
before the Court was contemplated by the subdivision permit that created the Property.
a. Question 6, 8, 9 and 11
Question 6 asks: “Did the DRB err in concluding that there will be no undue adverse impact
under Zoning Regulations Section 9.5, Standard 4, and that the Project complies with Standard 4?”10
The remaining aspect of Question 6 appears to address steep slopes and the relationship of the
Property to the stream and/or stream buffer. Questions 8 and 11 ask whether Applicant provided
sufficient evidence regarding the stream buffer (Question 8) and steep slopes (Question 11) to support
the DRB’s conclusion that the application complied with Zoning Regulations § 9.5, Standard 4.
Question 9 poses a related issue, whether Applicant provided sufficient evidence to support a finding
and conclusion, and whether the DRB made sufficient findings, relevant to the 50-foot buffer from
the steam on the Property sufficient to comply with Zoning Regulations §§ 3.10, 9.5 Standard 4 and
Subdivision Regulations § 5.1(2).
Appellant argues that the DRB erred in concluding that application complied with Zoning
Regulations § 9.5, Standard 4 because it had “scant analysis or findings on these issues . . ..”
With respect to Zoning Regulations § 9.5 Standard 4, addressed by all four Questions, those
factual findings are supported by substantial evidence in the record. Applicant provided a site plan
completed by an engineer. The site plan was further supplemented by testimony and a site visit. At
no point did Appellant or other neighbor property owners challenge the sufficiency of the site plan’s
depiction of the 50-foot stream buffer. Further, the site plan depicts 1-foot contour lines at the
Property. Applicant also submitted elevations of the Property depicting slope. Staff notes and
testimony on slope assist in understanding these site plans. See Record at 0079. It is clear that
Applicant provided substantial evidence to demonstrate these aspects of the Property and the
application and there is no evidence in the record to support a finding that the Property contains

8 Further, the DRB in Evans Clearing Limits also did not explicitly conduct a Stowe Club Highlands/Hildebrand

analysis but instead briefly noted the application’s non-compliance with the factors before denying the application on the
merits. Id. at 2. Despite this, the Court still declined to remand to the Town’s DRB for a complete review under this
analysis for other reasons. Id. at 4.
9 The Court notes that clear and complete legal analysis should always be the goal when conducting on-the-record

review. While the analysis is sufficient in this instance, all parties, including this Court on appeal, benefit from a complete
understanding of the DRB’s reasoning.
10 First, to the extent that Question 6 addresses wildlife habitat, for the same reason as set forth above with

respect to other wildlife-related Questions, that issue has not been preserved and is not before the Court at this time.

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slopes greater than 20%, particularly where the building site is located. To the extent that Appellant
requests that this Court reweigh the evidence in the record to reach an alternative finding and/or
conclusion, the Court cannot do so. See Devers-Scott, 2007 VT 4, ¶ 6.
Further, the Court finds that the DRB made sufficient factual findings based on this record to
support its legal conclusions.
To the extent that Appellant challenges the DRB’s legal conclusions, it presents no argument
that the DRB misinterpreted a provision of the applicable regulations. To the extent that it does, that
argument is that the DRB had “scant analysis . . . on this issue” of compliance with Zoning Regulations
§ 9.5, Standard 4. When conducting on-the-record review the Town follows the Municipal
Administrative Procedures Act (MAPA) and corresponding decisions must “be in writing and shall
separately state the findings of fact and conclusion of law.” 24 V.S.A. § 1209(a). With respect to the
conclusions of law, MAPA requires that “[c]onclusions of law shall be based on the findings of fact.”
24 V.S.A. § 1209(c). The DRB’s decision is in writing and contains separately stated findings of fact
and conclusions of law. The DRB’s decision therefore complies with MAPA requirements. The
Court finds no error with the sufficiency of the legal analysis.
To the extent that Appellant argues that the DRB erred in its application of Zoning
Regulations § 9.5, Guideline 4.4, the Court concludes that it did not. Again, Appellant presents no
specific argument as to misapplication or interpretation. This provision states a guideline that it is a
“[a]general rule is to keep a fifty (50’) foot setback from streams on lands with less than fifteen (15%)
percent slop, and on steeper slopes the buffer distance should be increased as the slope increases.”
Zoning Regulations § 9.5, Guideline 4.4. For the reasons set forth above, the record supports the
DRB’s finding that there is a 50-foot buffer from the stream. Appellant concedes this depiction and
simply notes that the buffer “may not” comply with the Zoning Regulations. Importantly, Zoning
Regulations § 9.5(3) specifically states that the “[g]uidelines are instructive in nature. . . . The options
for compliance are not limited to the guidelines listed, but the applicant can use the list to aid in the
design process.” Thus, the Court finds no error in the DRB declining to impose a greater stream
buffer, even assuming the slopes in this area are greater than 15%.
Thus, the Court finds no error with respect to Questions 6, 8, 911 and 11.

11 Question 9 also addresses Subdivision Regulations § 5.1(2). Beyond a quotation to the Question itself,

Appellant’s briefing presents no argument with respect to § 5.1(2). It is therefore both inadequately briefed and waived.
In re Smith, Bell & Hauck Real Estate, 132 Vt. 295, 300 (1974; In re Lawrence Site Plan Approval, No. 166-10-10 Vtec,
slip op. at 3 (Vt. Super. Ct. Envtl. Div. Oct. 17, 2011) (Durkin, J.). Further, Subdivision Regulations § 5.1(2) addresses
undue adverse impacts on scenic natural resources, including streams. Thus, for the same reasons as set forth above with

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b. Question 12
Question 12 asks: “Did the DRB err in concluding the Project complies with Section 5.2 of
the Subdivision Regulations?” Subdivision Regulations § 5.2(1) requires that subdivision within the
RHOD “shall conform to the subdivision requirements, standards and guidelines of Section 9 of the
Stowe Zoning Regulations.” Appellant presents no other argument related to this provision or Zoning
Regulations § 9 as set forth above. Thus, for the same reasons as set forth above, the Court finds no
error with any other aspect of Question 12. Question 12 is answered in the negative.
Conclusion
For the foregoing reasons, Questions 4, 5, 7 and 10 are DISMISSED as not properly being
preserved for review in this on-the-record matter. Questions 1 through 3, addressing the applicability
of Stowe Club Highlands/Hildebrand are answered in the negative based on the Court’s conclusion
that the application before the Court was contemplated by the subdivision permit that created the
Property. Finally Questions 6, 8, 9, 11 and 12 are all answered in the negative. The Court concludes
that there is no factual or legal error in the DRB’s decision concluding that the application complies
with Zoning Regulations §§ 3.10, 9.5, Standard 4 and Subdivision Regulations §§ 5.1(2) and 5.2. The
DRB’s decision is AFFIRMED.
This concludes the matter before the Court. A Judgment Order accompanies this Decision.

Electronically signed April 15, 2026 pursuant to V.R.E.F. 9(D).

Thomas G. Walsh, Judge
Superior Court, Environmental Division

respect to Zoning Regulations §§ 3.10 and 9.5, Standard 4, the Court concludes finds no legal or factual error with respect
to § 5.1(2).

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