In Re Benoit CU Appeal (Brenda Yacavoni & William Yacavoni)

VERMONT SUPREME COURT Case No. 24-AP-170
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

NOVEMBER TERM, 2024

In re Benoit CU Appeal (Brenda } APPEALED FROM:
Yacavoni* & William Yacavoni*) }
} Superior Court, Environmental Division
}
} CASE NO. 23-ENV-00103
Trial Judge: Thomas S. Durkin

In the above-entitled cause, the Clerk will enter:

Neighbors appeal pro se from the Environmental Division’s decision in favor of
applicants. We affirm.

Applicants sought permission from the Town of Barre Development Review Board
(DRB) to convert an existing barn on their property into a “community center/recreational
facility” to host weddings and special events. In August 2023, following a public hearing, the
DRB approved the request with conditions. Neighboring landowners appealed to the
Environmental Division. Following a site visit and a two-day merits hearing, the Environmental
Division granted applicants’ request for conditional-use approval, subject to the conditions
imposed by the DRB.

The court made numerous findings, including the following. The subject property is a
53-acre parcel located in the town’s low-density residential district. There is a barn on the
property and the remainder of the land is leased for growing agricultural crops. The home of the
closest appealing neighbor was 335 feet from the barn; the home of appellants in the instant case
was 605 feet from the barn.

Applicants proposed to use the barn venue no more than twenty-eight days per year with
limited hours. They implemented various mitigation measures in response to noise, lighting, and
alcohol-use concerns. Applicants also proposed to expand existing parking near the barn, create
an area for portable toilets and food trucks, and establish fire pits and other related outdoor
activities. The expected attendance at events was 100-150 guests, with a maximum of 200
people.

The court agreed with the town that the project fit within the town bylaw’s definition of a
“community center/recreational facility.” That term is defined as:
A building, together with accessory buildings and uses, used for
recreational and cultural activities operated for profit for the
benefit of the community; shall only have an outdoor public
address system or any type of amplified music device by
conditional use permit.

The court found that the barn would be used primarily to host weddings, anniversaries,
and birthday parties, all of which it considered cultural events. These events would be operated
for profit and provide a venue for special events to take place in the community. The court
identified other benefits to the community from the project, such as: preserving a historic barn
through rehabilitation and reuse; increasing the property’s value and thereby increasing property
tax revenue; generating rooms-and-meals tax revenue; and providing employment opportunities
during construction and operation. The court rejected neighbors’ assertion that the facilities
needed to be open and available to the public to constitute a community center, finding no
language to that effect in the definition.

The court considered the project appropriate for the low-density residential district, which
was “limited to non-intensive land uses.” As set forth in the relevant bylaw:

The purpose of this district is to prevent premature development of
land, retain certain areas for non-intensive uses, prevent
development where it would be a burden on the community, and
retain areas for open space. Since the rural character of these lands
depends on open space and natural areas, protection of these
features should be considered when evaluating proposed
conditional uses. Municipal water and sewer may or may not be
available.

The court concluded that the project fell squarely within this description. It was located
on a roughly 50-acre parcel but only took up about 2 acres, most of which was to be used for
parking and accessory outdoor activities. The remainder of the property would continue to be
used for agricultural activities, thereby preserving open space and the rural character of the
neighborhood. The only “development” on the property, the court noted, was the restoration and
rehabilitation of the existing barn and small expansion of an existing parking area.

Finally, as relevant here, the court considered if the proposed development would have an
undue adverse effect on “[t]he character of the area affected as defined by the purpose(s) of the
zone within which the project is located.” As set forth above, the court found the project
consistent with the purpose of the low-density residential district and concluded that it would not
have an undue adverse effect, particularly with respect to noise and lighting. The surrounding
neighborhood consisted primarily of residential and agricultural uses and it was a short distance
from downtown Barre. The homes of several neighbors were located in the high-density
residential district. Applicants had implemented several mitigation measures to minimize any
noise and lighting impacts. Taken together, the court reasoned, these measures would ensure
that there was no undue adverse impact on the character of area. The court recognized that there
were homes in relatively close proximity to the barn but, as noted above, it concluded that
adequate mitigation measures had been proposed to prevent an undue adverse impact on
neighboring properties. This appeal followed.

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“We review the Environmental Division’s factual findings with deference and will not
overturn them unless taking them in the light most favorable to the prevailing party, they are
clearly erroneous, meaning that there is no credible evidence to support them.” In re Burton
Corp. Conditional Use/Act 250, 2024 VT 40, ¶ 18 (quotation omitted). We review the court’s
legal conclusions to determine if they are “reasonably supported by the findings.” Id. (quotation
omitted). We review pure questions of law, such as the interpretation of the town’s bylaws, de
novo, although “we continue to defer to a municipality’s interpretation of its own ordinance if it
is reasonable and has been applied consistently.” Id. (quotation omitted).

Neighbors did not order a transcript of the proceedings below and they thereby “waived
any challenge to sufficiency of the court’s findings.” Evans v. Cote, 2014 VT 104, ¶ 7, 197 Vt.
523; V.R.A.P. 10(b)(1) (explaining that appellant is responsible for ordering transcript and if no
transcript ordered, appellant “waives the right to raise any issue for which a transcript is
necessary for informed appellate review”). “Without the transcript, this Court assumes that the
trial court’s findings are supported by the evidence.” Cote, 2014 VT 104, ¶ 7. We thus do not
address any challenges to the court’s findings. We similarly do not address any arguments raised
for the first time in a reply brief, which here includes challenges to the evidentiary support for
the court’s factual findings. See, e.g., Gallipo v. City of Rutland, 2005 VT 83, ¶ 52, 178 Vt. 244
(stating that issues not raised in original brief may not be raised for first time in reply brief).

With this in mind, we turn to neighbors’ arguments. Neighbors first assert that the court
erred in concluding that the project fit within the definition of a “community center.” They
maintain that the project involves private, invitation-only events, which is not consistent with a
standard definition of a “community” benefit. They further contend that the project is not
“limited to non-intensive land use,” as required by the town bylaw. Neighbors also complain
about the court’s analysis of “undue adverse effect” and argue that the court ignored evidence
that they presented on this subject. Neighbors argue that the court should have considered the
effect of the project not just as measured from their homes but also from their shared property
lines.

We reject these arguments, which largely turn on the Environmental Division’s
assessment of the weight of the evidence. See In re N. E. Materials Grp., LLC, 2019 VT 55, ¶ 6,
210 Vt. 525 (recognizing that Environmental Division “determines the credibility of witnesses
and weighs the persuasive effect of evidence” (quotation omitted)). As indicated above, the
town bylaws define a “community center” as a “building, together with accessory buildings and
uses, used for recreational and cultural activities operated for profit for the benefit of the
community.” In addition to providing a venue for special events to take place in the community,
the court found that the community would benefit from the project because applicants were
preserving a historic barn through rehabilitation and reuse, increasing their property value and
thereby increasing property tax revenue, generating rooms-and-meals tax revenue, and providing
employment opportunities during construction and operation. The fact that these might be
invitation-only events does not undermine the court’s finding as to other benefits the project will
provide to the community, nor does the language of the bylaw require that such uses be open to
the public. The court’s findings support its conclusion regarding the classification of this project.
As applicants note, moreover, the DRB has previously approved the conversion of an existing
barn into a wedding venue in the town as a “community center/recreation facility,” as it did in
this case. See In re Burton Corp., 2024 VT 40, ¶ 18 (recognizing that this Court “defer[s] to a
municipality’s interpretation of its own ordinance if it is reasonable and has been applied
consistently”). The fact that the other property was located in a medium-density residential

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district does not undermine the Town’s classification of this type of use as a “community
center/recreation facility.”

The court’s other conclusions are equally supported. The fact that there will be some
outdoor activity in connection with the special events does not mean that it involves an
“intensive land use,” as neighbors assert. The court found that the only “development” on the
property was the restoration and rehabilitation of the existing barn and small expansion of an
existing parking area; the remainder of the fifty-three-acre property would continue to be used
for growing crops. The court did not err in considering the proposed use as a “non-intensive land
use.”

The court provided a reasoned explanation for its remaining conclusions, including that
the project would not have an undue adverse impact on the character of the area. It was not
required to credit testimony offered by neighbors on this subject. The court found here that the
noise and lighting mitigation steps taken by applicant resulted in no undue adverse effect. It
found that applicants installed double pane windows, added insulation and an HVAC system,
and they limited amplified music to inside the barn. The parking area was oriented to avoid
vehicle lights being aimed at adjacent properties and all permanent outdoor lighting will be LED
and downcast. These findings support the court’s conclusion as to the absence of an undue
adverse effect. The court considered the effect of the project on neighboring properties, noting
in its decision the relatively short distance of various homes from the barn; it considered and
rejected neighbors’ assertions regarding noise in the vicinities of their homes as well. While
neighbors disagree with the result, they fail to show that the Environmental Division erred in
reaching its decision.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Karen R. Carroll, Associate Justice

William D. Cohen, Associate Justice

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