Volume 155 — Vermont Reports

<bold>1. Searches and Seizures — Acts Constituting Seizure —</bold> <bold>Investigatory Stops</bold> Investigatory stops are permitted where specific and articulable facts, together with the rational inferences taken therefrom, reasonably warrant the intrusion, and the requisite level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. U.S. Const. amend. IV; Vt. Const. ch. I, art. 11. <bold>2. Searches and Seizures — Reasonable Searches and Seizures</bold> <bold>— Tests and Standards</bold> For purposes of reasonable suspicion adequate to justify an investigatory stop, generally information about criminal or suspicious activity from a citizen who is not a paid informant and is unconnected with the police is presumed to be reliable. U.S. Const. amend. IV; Vt. Const. ch. I, art. 11. <bold>3. Searches and Seizures — Acts Constituting Seizure —</bold> <bold>Investigatory Stops</bold> Officer's investigatory stop of driver based on citizen's complaint of erratic driving and officer's observation of extremely slow driving by defendant was sufficiently based on reasonable suspicion to warrant stop. U.S. Const. amend. IV; Vt. Const. ch. I, art. 11. <bold>4. Constitutional Law — Miranda Warning — When Necessary</bold> In prosecution of driving under the influence of intoxicating liquor, the trial court properly allowed officer's testimony concerning defendant's behavior and demeanor where observations were made prior to start of interrogation and during routine questioning for booking. U.S. Const. amend. V; <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2).<page_number>Page 79</page_number> <bold>5. Constitutional Law — Miranda Warning — When Necessary</bold> At trial for driving under the influence of intoxicating liquor, officer could testify as to defendant's behavior and demeanor during routine questioning for booking; because the questioning was not of an incriminatory nature, it was not subject to Fifth Amendment privilege. U.S. Const. amend. V; <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2). <bold>6. Trial — Argument of Counsel — Improper Argument</bold> At trial for driving under the influence of intoxicating liquor, prosecutor's statement, in closing arguments, that officer was specifically trained to detect the symptoms of intoxication which he testified he observed, even if amounting to impermissible argument based on facts not in evidence, did not constitute reversible error. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2); V.R.Cr.P. 52(a).

<bold>1. Estoppel — Collateral Estoppel — Estoppel Not Found</bold> Issue of whether road met municipal zoning regulation criteria for dedication and acceptance as a "public road" was neither fully litigated and resolved nor essential to the superior court judgment denying site plan approval of residential subdivision and dismissing with prejudice all claims on appeal from planning commission's decision; therefore, collateral estoppel did not bar relitigation of this issue. <cross_reference>24 V.S.A. § 4406</cross_reference>(2). <bold>2. Administrative Law — Decision — Res Judicata</bold> Res judicata does not apply to administrative proceedings as an inflexible rule of law. <bold>3. Zoning — Hearings — Rehearing</bold> Principles of res judicata and collateral estoppel generally apply in zoning cases as in other areas of law. <bold>4. Zoning — Site-Plan Approval — Considerations</bold> Res judicata will not bar a planning commission (or court acting as such commission) from granting a second application for site plan approval where the application has been substantially changed so as to respond to objections raised in the original application or when the<page_number>Page 153</page_number> applicant is willing to comply with conditions the commission or court is empowered to impose. <bold>5. Zoning — Site-Plan Approval — Considerations</bold> Burden of proof that intervening changed circumstances have occurred such that res judicata will not bar consideration of second application for site plan approval rests with the applicant. <bold>6. Zoning — Site-Plan Approval — Considerations</bold> Explicit finding of changed circumstances will not be required before consideration of a second application for site plan approval if superior court's findings implicitly indicate that the modified proposal is sufficiently changed to satisfy concerns that prevented approval of the prior application and the findings are supported by credible evidence. <bold>7. Zoning — Appeal From Superior Court — Standard of Review</bold> Superior court's approval of second application for site plan approval which contained new proposals for landscaping and road improvement was not clearly erroneous and would be upheld. <bold>8. Zoning — Site-Plan Approval — Violation of Ordinance</bold> Issue of applicant for site plan approval's failure to obtain necessary permits prior to inception of development was not properly before supreme court on review of grant of site plan approval; neither the planning commission nor the court was obligated to reject site plan on basis of prior, unpermitted development. 24 V.S.A. §§ 4303(3), 4441, 4443(a)(1). <bold>9. Zoning — Site-Plan Approval — Considerations</bold> Superior court did not exceed its subject matter jurisdiction on de novo review of application for site plan approval when it determined road fronting proposed subdivision lots to be a "public road" accepted and dedicated by city, a threshold requirement for site plan approval. 24 V.S.A. §§ 4406(2), 4472(a).

<bold>1. Zoning — Appeals From Board of Adjustment — Timely Appeal</bold> Although a zoning applicant can appeal from an oral decision, that decision does not become final and the appeal period does not begin to run until either the board files its written decision or the statutory period for doing so has expired. <cross_reference>24 V.S.A. § 4407</cross_reference>(2).<page_number>Page 613</page_number> <bold>2. Zoning — Appeals From Board of Adjustment — Timely Appeal</bold> Where zoning board of adjustment fails to issue a decision concerning a conditional use application within statutory period, its failure to decide will be deemed approval and will constitute a final decision that will start the running of applicable appeal period. <cross_reference>24 V.S.A. § 4470</cross_reference>(a). <bold>3. Zoning — Appeals From Board of Adjustment — Exclusivity of</bold> <bold>Remedy</bold> Once a decision of zoning board of adjustment is made and communicated to the applicant, orally or in writing, the applicant is not entitled to statutory deemed approval remedy which applies where the board has altogether failed to reach a decision within the statutory period. <cross_reference>24 V.S.A. § 4470</cross_reference>(a). <bold>4. Zoning — Appeals From Board of Adjustment — Superior Court</bold> <bold>Review</bold> Superior court had jurisdiction over appeal from zoning board of adjustment's denial of conditional use permit, notwithstanding that appeal was prematurely filed upon rendering of oral decision not constituting a "final decision"; appeal would be treated as if it had been filed on day of entry of judgment, upon expiration of statutory period within which board was required to issue final written decision. <cross_reference>24 V.S.A. § 4407</cross_reference>(2); V.R.A.P. 4. <bold>5. Zoning — Appeals From Board of Adjustment — Superior Court</bold> <bold>Review</bold> Fact that zoning administrator had determined that zoning permit application involved a request for conditional use approval did not constitute a determination on the merits; therefore failure to appeal zoning administrator's action in passing permit application on to zoning board of adjustment did not deprive superior court of jurisdiction to rule on merits of appeal from board's denial of conditional use. <bold>6. Zoning — Appeal From Superior Court — Standard of Review</bold> The supreme court reviews zoning ordinances narrowly, overturning only those that are clearly unreasonable, irrational, arbitrary, or discriminatory. <bold>7. Zoning — Conditional Uses — Particular Cases</bold> Reversal of trial court's denial of conditional use permit was not warranted on basis that municipal ordinance failed to encompass all general statutory criteria where denial of the conditional use was based on one of the general criteria which was embodied in the ordinance. <cross_reference>24 V.S.A. § 4407</cross_reference>(2); RZR 3.4:1. <bold>8. Zoning — Conditional Uses — Statutes</bold> Once a municipality adopts conditional use zoning, its decisions must conform to statutory standards of the relevant enabling act; where such ordinances do not embody all the statutory criteria, the statutory criteria govern without further action by the town. <bold>9. Zoning — Construction of Ordinances — Delegated Authority</bold> If a municipality's ordinance fails to effectuate a state policy, the ordinance should be read to include and effectuate the policy.<page_number>Page 614</page_number> <bold>10. Zoning — Construction of Ordinances — Delegated Authority</bold> The plain meaning of the statute relevant to conditional uses is that, in order to do conditional use zoning, a town must use the enumerated general standards, and its use of such standards is the fulfillment of a purely administrative duty for which an ordinance is unnecessary; specific standards, however, are left to the town's discretion. <cross_reference>24 V.S.A. § 4407</cross_reference>(2). <bold>11. Zoning — Conditional Uses — Statutes</bold> Municipality's conditional use ordinance which encompassed only some of the general statutory criteria was valid; all the mandated general standards would be read into the ordinance, and other provisions of the ordinance were valid as specific standards which it was within the town's discretion to set. <cross_reference>24 V.S.A. § 4407</cross_reference>(2); RZR 3.4:1. <bold>12. Zoning — Conditional Uses — Decision on Application for</bold> <bold>Permit</bold> At trial de novo on appeal from denial of conditional use permit by applicant seeking to construct a retail farm stand to be connected to an existing house, the trial court's conclusions that proposed stand was a commercial, not an accessory, use and that agriculture was a second principal use of the property which the lot could not adequately support were not clearly erroneous, arbitrary or capricious and would stand. <cross_reference>24 V.S.A. § 4407</cross_reference>(2); RZR 1.3.3, 1.3.36; 3.4:1, 5.10:11; 6.2.3, 6.3.3.