Volume 167 — Vermont Reports

<bold>1. Administrative Law — Judicial Review — Standards</bold> <block_quote> Judicial deference is given to the Environmental Board's interpretations of Act 250 and its own rules, and to the board's specialized knowledge in the environmental field, and, absent compelling indications of error, its interpretations will be sustained on appeal. This deferential level of review does not equate with mere judicial passivity in determining the propriety of board "interpretations" of its own rules. Rather, as with all legislative schemes, the Court is guided by the intent of the Legislature, as evidenced by the statutes themselves. <cross_reference>10 V.S.A. ch. 151</cross_reference>.</block_quote> <bold>2. Administrative Law — Judicial Review — Standards</bold> <block_quote> The Environmental Board's findings will be affirmed on appeal if based on evidence properly before the board that is relevant and that a reasonable person might accept as adequate to support a conclusion. The board's conclusions of law will be affirmed if they are rationally derived from a correct interpretation of the law and findings of fact based on substantial evidence. <cross_reference>10 V.S.A. § 6089</cross_reference>(c).</block_quote> <bold>3. Administrative Law — Judicial Review — Preservation of</bold> <bold>Issues</bold> <block_quote> Where applicant argued that the board's findings and conclusions on the impacts of market competition had to be overturned because such impacts were irrelevant<page_number>Page 76</page_number> to review under Act 250 and had clearly objected to the relevance of economic impacts early in the process, the question was properly before the Court. <cross_reference>10 V.S.A. § 6089</cross_reference>(a), (c).</block_quote> <bold>4. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board conclusion that a project's impact on market competition was a statutorily relevant factor under Criterion 9(A) (impact of growth) was supported by the plain language of the statute, which requires the board to consider the "financial capacity" of the town and the region to accommodate growth. <cross_reference>10 V.S.A. § 6086</cross_reference>.</block_quote> <bold>5. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board properly considered proposed store's impact on market competition, despite the contention that projections of such impacts were speculative and unreliable. The studies of the accuracy of economic impact analysis that applicant relied on did not appear in the record, and there was no indication that this issue was ever raised before the board. In any event, such an argument went not to admissibility, but rather to the weight and sufficiency of the evidence. <cross_reference>10 V.S.A. § 6086</cross_reference>(a).</block_quote> <bold>6. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board did not err in requiring applicant to provide secondary-growth studies to satisfy statutory Criteria 6 (impact on education), 7 (municipal services), and 9(A) (impact of growth). To make a positive finding under these criteria, the board needed evidence of the expected secondary growth and its associated costs and benefits to determine whether the project would cause an undue burden on the financial capacity of the town and the region and, under the board's rules, it could require such additional information or supplementary information as it deemed necessary to fairly and properly review the proposal. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(9)(A); Environmental Board Rule 10(B), 6 Code of Vermont Rules 12003001.</block_quote> <bold>7. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board, by including the impact of secondary growth in its review, was not reviewing small projects that did not individually fall within its jurisdiction under Act 250 even though, because the town had adopted zoning and subdivision regulations, a project in the town did not trigger Act 250 jurisdiction unless it involved 10 or more acres of land. The purpose of such a study was to assess secondary-growth impacts caused by applicant, and the study was not a dispositive review of subsequent small-scale developments that would be subject to local control. <cross_reference>10 V.S.A. § 6001</cross_reference> (3).</block_quote> <bold>8. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board did not err in requiring applicant to provide secondary-growth studies, although applicant contended that it was unfair to use such a study to devise permit conditions, essentially requiring it mitigate other development. Such a permit condition did not exist and the Court would not review it. <cross_reference>10 V.S.A. ch. 151</cross_reference>.</block_quote> <bold>9. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> In a retail store permit application proceeding, the speculative nature of required secondary studies affected the weight of the evidence, not its admissibility. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(9)(A).</block_quote><page_number>Page 77</page_number> <bold>10. Statutes — Maxims and Rules of Construction — Legislative</bold> <bold>History or Intent</bold> <block_quote> When interpreting statutes, the primary judicial task is to discern the Legislature's intent and to give effect to that intent.</block_quote> <bold>11. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> The Legislature intended the word "growth," as used in Criterion 9(A) of Act 250, to apply to economic, as well as population, growth. <cross_reference>10 V.S.A. §§ 6042</cross_reference>, <cross_reference>6086</cross_reference>(a)(9)(A).</block_quote> <bold>12. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> Environmental Board properly concluded that proposed project was in a rural, not urban, area, and that applicant had to provide a plan appropriate for the lower level of traffic congestion experienced in rural areas, despite the determination of the Agency of Transportation that the intersection at issue was in an urban area and therefore required a lower traffic flow standard. Under Criterion 5, the board must make its own determination as to the nature of the area and the level of service appropriate for that area. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(5).</block_quote> <bold>13. Administrative Law — Judicial Review — Preservation of</bold> <bold>Issues</bold> <block_quote> Although applicant argued that the Environmental Board's determination that the proposed project was in a rural, not urban, area violated a Memorandum of Understanding between the board and the Agency of Transportation, the memorandum itself did not appear as part of the appellate record and was thus beyond judicial review, as facts outside the record of a case cannot be considered on appeal.</block_quote> <bold>14. Environment and Natural Resources — Environmental Protection</bold> <bold>— Land Use</bold> <block_quote> In a retail store permit application proceeding, although applicant did not bear the burden of proof with respect to statutory Criterion 6, once applicant offered evidence showing that the project would cause a burden on regional education services, the Environmental Board could properly require applicant to produce additional evidence demonstrating its plan to reduce or eliminate that burden. <cross_reference>10 V.S.A. § 6086</cross_reference>(a)(6).</block_quote>

<bold>1. Search and Seizure — Issuance of Warrant — Affidavit;</bold> <bold>Requisites</bold> <block_quote> In determining whether probable cause supports the issuance of a search warrant, key inquiry is whether information provided in the affidavit reveals circumstances from which a person of reasonable caution would conclude that a crime has been committed and that evidence of the crime will be found in the place to be searched. U.S. Const. amend. <cross_reference>IV</cross_reference>; V.R.Cr.P. 41(c).</block_quote> <bold>2. Search and Seizure — Practice and Procedure — Appellate</bold> <bold>Review</bold> <block_quote> The court on appeal will give great deference to the lower court's determination of probable cause supporting the issuance of a search warrant, and will not undertake hypertechnical scrutiny of supporting affidavits. U.S. Const. amend. <cross_reference>IV</cross_reference>.</block_quote> <bold>3. Search and Seizure — Issuance of Warrant — Probable Cause</bold> <block_quote> A common-sense reading of a game warden's affidavit supported the finding of probable cause that defendant had illegally shot deer, where the affidavit indicated<page_number>Page 350</page_number> defendant had been observed driving at night without headlights in the immediate vicinity of where gun shot had recently been heard, evidence of killed deer was found in the field where shots were heard, and DNA tests established a match between the deer killed in the field and one dragged across defendant's yard within a day of suspected deer jacking. U.S. Const. amend. <cross_reference>IV</cross_reference>.</block_quote> <bold>4. Search and Seizure — Practice and Procedure — Appellate</bold> <bold>Review</bold> <block_quote> A defendant challenging a probable cause finding on the grounds that the supporting affidavit contained false information or omissions must establish by the preponderance of the evidence that the government agent who produced the affidavit made false statements or omissions not negligently, but intentionally, knowingly, or with reckless disregard for the truth; the reviewing court will then consider the affidavit as though the omitted information had been supplied and the accurate information included, and will determine whether the omitted and erroneous information influenced the finding of probable cause. U.S. Const. amend. <cross_reference>IV</cross_reference>.</block_quote> <bold>5. Search and Seizure — Issuance of Warrant — Probable Cause</bold> <block_quote> A valid search warrant must be based upon probable cause that the items sought will actually be at the place sought to be searched at the time of the search. U.S. Const. amend. <cross_reference>IV</cross_reference>.</block_quote> <bold>6. Search and Seizure — Issuance of Warrant — Timeliness of</bold> <bold>Proof</bold> <block_quote> The court reasonably concluded that contraband deer meat would likely be found at defendant's home when a warrant was issued, despite a delay of six months from the alleged deer jacking, as: (1) The affidavit contained representations by an experienced game warden that illegally taken deer are usually transported to a residence, processed, stored in a home freezer, and consumed over a period of six to 12 months; (2) The likelihood that evidence is not destroyed over the passage of time is strengthened where the defendant exercises control over the place to be searched; and (3) Where the evidence sought, such as deer meat, is innocuous, the passage of time does not diminish the likelihood that it will be found at a given location. U.S. Const. amend. <cross_reference>IV</cross_reference>.</block_quote>

<bold>1. Judgments — Summary Judgment — Appellate Review</bold> <block_quote> When reviewing a grant of summary judgment, the same standard as the trial court is applied: Summary judgment will be affirmed if, after taking all allegations made by the nonmoving party as true, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.</block_quote> <bold>2. Zoning and Planning — Administration and Enforcement —</bold> <bold>Notice</bold> <block_quote> Although the applicable statute does not delineate the form or style in which the decision of a zoning board of adjustment must be memorialized or how the decision must be organized, because the statute's meaning is clear and unambiguous about what a town is required to do to put an appellant on notice and start the 30-day clock running, the statute will be enforced according to its terms and additional requirements for towns to meet will not be added. <cross_reference>24 V.S.A. §§ 4470</cross_reference>(a), <cross_reference>4471</cross_reference>, <cross_reference>4472</cross_reference>(a), (d); V.R.C.P. 74; V.R.A.P. 4.</block_quote> <bold>3. Zoning and Planning — Administration and Enforcement —</bold> <bold>Notice</bold> <block_quote> In a zoning dispute, because plaintiff-town fulfilled its statutory duties — (1) the zoning board of adjustment (ZBA) informed defendant-landowner at its hearing that the hearing on his appeal was closed and that it would render a decision within 45 days; and (2) the ZBA later rendered its final decision and, within 45 days, mailed the minutes of the meeting by certified mail to defendant's correct address and received back a signed receipt — and there was no evidence that plaintiff's purpose in using this procedure was to intentionally hinder defendant's ability to determine that a decision had been rendered, defendant received notice, and the time period in which he could appeal the decision began to run. <cross_reference>24 V.S.A. §§ 4470</cross_reference>(a), <cross_reference>4471</cross_reference>, <cross_reference>4472</cross_reference>(a), (d); V.R.C.P. 74; V.R.A.P. 4.</block_quote> <bold>4. Zoning and Planning — Administration and Enforcement —</bold> <bold>Findings</bold> <block_quote> Because defendant-landowner failed to take advantage of his exclusive remedy of appealing the decision of the zoning board of adjustment to the superior court<page_number>Page 515</page_number> within 30 days, he was precluded from collaterally attacking the granting of plaintiff-town's summary judgment motion by claiming that the decision did not include any findings of fact. <cross_reference>24 V.S.A. § 4470</cross_reference>(a).</block_quote> <bold>5. Appeal and Error — Preservation of Questions — Failure to</bold> <bold>Make Specific Objections</bold> <block_quote> In a zoning dispute, defendant-landowner's objection made during a summary judgment hearing failed to explain how his due-process rights were violated by plaintiff-town's use of board minutes to serve as notice of a decision and, more importantly, while cloaking his objection in constitutional terms, he was in fact only reasserting one of his statutory challenges; thus, the objection was insufficient to preserve for appeal any constitutional challenge. <cross_reference>24 V.S.A. § 4470</cross_reference>(a).</block_quote> <bold>6. Zoning and Planning — Administration and Enforcement — Fines</bold> <bold>and Penalties</bold> <block_quote> A civil penalty is remedial in nature, while a criminal penalty is designed for deterrence and retribution; therefore, one who is assessed a criminal penalty must be provided certain constitutional rights that are not granted to one who is assessed a civil penalty, e.g., protection from self-incrimination, federal <cross_reference>Sixth</cross_reference> Amendment protections, prohibition against being placed in double jeopardy, and the requirement that the case be proven beyond a reasonable doubt. U.S. Const. amend. <cross_reference>VI</cross_reference>.</block_quote> <bold>7. Zoning and Planning — Administration and Enforcement — Fines</bold> <bold>and Penalties</bold> <block_quote> A determination of whether a statutorily defined penalty is civil or criminal is a matter of statutory construction involving a two-step analysis: (1) It must be determined whether the Legislature, either expressly or impliedly, intended the penalty to be criminal or civil; and (2) If it is concluded that the Legislature intended to create a civil penalty, it must be determined whether the penalty's purpose or effect is excessively punitive.</block_quote> <bold>8. Statutes — Maxims and Rules of Construction — Ordinary or</bold> <bold>Common Sense Meaning</bold> <block_quote> In order to determine the Legislature's intent, the language of the statute itself must be first looked to, as the Legislature is presumed to have intended the plain, ordinary meaning of the language, and if the meaning of the statute is plain on its face, there is no need for further statutory construction.</block_quote> <bold>9. Zoning and Planning — Administration and Enforcement — Fines</bold> <bold>and Penalties</bold> <block_quote> The plain language of <cross_reference>24 V.S.A. § 4444</cross_reference>(a) evinces an intent to create a civil penalty for violation of a town's bylaws: (1) Upon notice of a violation, the alleged offender is permitted to cure the violation, and if cured, no penalty will be assessed; and (2) The opportunity to cure establishes the coercive and remedial nature of § 4444 and reveals that the statute's primary purpose is to bring about cessation of the violation. <cross_reference>24 V.S.A. § 4444</cross_reference>(a).</block_quote> <bold>10. Zoning and Planning — Administration and Enforcement —</bold> <bold>Fines and Penalties</bold> <block_quote> The use of the fine provision in <cross_reference>24 V.S.A. § 4444</cross_reference>(a) to reimburse towns for the cost of zoning enforcement is contemplated by the statute, is rationally related to<page_number>Page 516</page_number> the damages suffered from a landowner's violation of a town's bylaw, and does not have an impact on any constitutionally-protected rights or interests of the landowner and, hence, is nonpunitive in nature. <cross_reference>24 V.S.A. § 4444</cross_reference>(a).</block_quote> <bold>11. Zoning and Planning — Administration and Enforcement —</bold> <bold>Fines and Penalties</bold> <block_quote> Because the Legislature intended the fine authorized by <cross_reference>24 V.S.A. § 4444</cross_reference> to be a civil penalty and the fine was not so punitive in nature or effect to negate the Legislature's intent, landowner's constitutional rights were not violated where he was not allowed to present affirmative defenses or cross-examine witnesses, and the town was not required to prove the violation beyond a reasonable doubt. <cross_reference>24 V.S.A. § 4444</cross_reference>; U.S. Const. amend. <cross_reference>VI</cross_reference>.</block_quote> <bold>12. Zoning and Planning — Administration and Enforcement —</bold> <bold>Enforcement and Penalties</bold> <block_quote> In determining the amount of an assessed fine pursuant to <cross_reference>24 V.S.A. § 4444</cross_reference>(a), a court's discretion is limited by the criteria set forth in the statute and the constitutional requirement that the fine be civil in purpose and effect, i.e., that it not be used to punish the violator. <cross_reference>24 V.S.A. § 4444</cross_reference>(a).</block_quote> <bold>13. Zoning and Planning — Administration and Enforcement —</bold> <bold>Enforcement and Penalties</bold> <block_quote> The court did not exceed its authority by basing landowner's fine under <cross_reference>24 V.S.A. § 4444</cross_reference>(a) upon town's attorney's fees and costs, as the fine was expressly limited to $50 per day and remained well within the statutory limits, and as the Legislature intended that the fine be civil and therefore remedial in nature. <cross_reference>24 V.S.A. § 4444</cross_reference>(a).</block_quote> <bold>14. Zoning and Planning — Administration and Enforcement —</bold> <bold>Enforcement and Penalties.</bold> <block_quote> In a zoning enforcement action, the court did not abuse its discretion by deducting $4,000 from the civil fine imposed against landowner to help defray his costs in attempting to comply with the permit conditions and not permitting town to recover administrative and investigative costs. <cross_reference>24 V.S.A. § 4444</cross_reference>(a).</block_quote>

<bold>Search and Seizure — Warrant Requirement; Exceptions —</bold><bold>Particular Cases</bold> <block_quote> Based upon information supplied to a police officer, he had probable cause to believe an assault by a former wife against her former husband (a "household member") had occurred, was authorized to arrest under V.R.Cr.P. 3(a), and was required, under V.R.Cr.P. 3(c)(1), to stop the van in which she and defendant were riding; and having lawfully detained defendant, and having detected clear signs of intoxication, the officer was then authorized to investigate further in order to confirm or negate his suspicions regarding probable cause to arrest for driving under the influence. V.R.Cr.P. 3(a)(2)(C), (c)(1); <cross_reference>15 V.S.A. § 1101</cross_reference>(2); <cross_reference>23 V.S.A. §§ 1201</cross_reference>(a)(2), <cross_reference>1205</cross_reference>.</block_quote>