Appeals. Zoning finality. Rules suspended to confer appellate jursidiction over interlocutory appeal from order remanding zoning case to DRB. Stowe Club test does not preclude amended permit, because changing lot designated for required hotel did not require change in permit condition.

In re Stowe Highlands Merger/Subdivision Application, 2013 VT 4 (Burgess, J.) 

This appeal stems from Stowe Highlands’ application to amend its PUD by subdividing and then merging certain lots, including one designated for a hotel. The DRB concluded that the amendment amounted to a change in the permit conditions and that Stowe Highlands had not demonstrated an unanticipated change in factual circumstances beyond its control. The Environmental Division reversed, concluding that the application required no permit condition change. We affirm.

The Environmental Division’s order was not a final judgment, because the court remanded the case back to the DRB to conduct a merits review. See In re Cliffside Leasing Co., 167 Vt. 569, 570, 701 A.2d 325, 325 (1997) (mem.) (concluding that environmental court’s decision remanding case to zoning board for review was not a final judgment). Nonetheless, no party moved to dismiss the appeal for lack of a final judgment and the case has been fully briefed and oral argument presented. The appellate rules can be suspended as a matter of discretion in the interest of judicial economy, and we do so here and decide the issue presented. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 3 n.2, 187 Vt. 637, 996 A.2d 219 (mem.) (allowing suspension of appellate rules when, as here, dismissal of the appeal “most likely would result in an appeal after final judgment”); see V.R.A.P. 2.

The DRB applied the Stowe Club test to evaluate whether to grant such a change. Under this test, the Board examines whether a permit modification is justified by: changes in factual or regulatory circumstances beyond the permittee’s control, changes in the project’s construction or operation not reasonably foreseeable at the time the permit was issued, or changes in technology. In re Stowe Club Highlands, 166 Vt. at 38-39, 687 A.2d at 105-06; see In re Hildebrand, 2007 VT 5, ¶¶ 7, 13-15, 181 Vt. 568, 917 A.2d 478 (mem.) (explaining and applying Stowe Club test).

The court was correct in its assessment that no evidence supported a reading of the permit to condition development of Parcel 1 to nothing beyond a hotel or inn. The application proposed to decrease the lot size for the hotel, but reserved Parcel 1A for the same sized 21-unit hotel as previously permitted. Because the proposed amendment did not require a change in a permit condition, the Stowe Club test was not applicable, and the Environmental Division’s reversal and remand to the DRB for further review of the application was proper.